Treacy v Robinson Son, Ltd and Others McGovern v Same defendants

• Jurisdiction: Ireland
• Judgment Date: 29 July 1937
• Date: 29 July 1937
• Court: Supreme Court (Irish Free State)

Supreme Court.

Treacy v. Robinson & Son and Others. McGovern v. Same Defendants.

CATHERINE TREACY

Plaintiff

and

THOMAS ROBINSON & SON, LTD., McENTAGART BROTHERS, LTD., and JOHN BEGGAN

Defendants

and

MARTHA McGOVERN

Plaintiff

and

SAME, Defendants(1)

Negligence - Action for damages against three defendants - Defendants sued jointly, severally, or in the alternative - Whether one of the defendants was the servant or agent of either of the other two defendants - Letter written to employee of one of the defendants - Construction of letter - Usage of business - Direction given by trial Judge in favour of each of two of the defendants - Appeal by plaintiff from directions - Whether directions properly given - Whether defendants joint tort feasors.

Two Appeals by the two plaintiffs, Catherine Treacy and Martha McGovern, from directions given by the trial Judge (Hanna J.) in favour of each of the two defendants, Thomas Robinson & Son, Ltd., and McEntagart Brothers, Ltd., in two actions claiming damages for negligence, which the plaintiffs brought against the said two defendants, and against a third defendant, John Beggan, an employee of the defendants McEntagart, Brothers, Ltd.

The material facts have been summarised in the headnote and appear sufficiently in the judgment of Kennedy, C.J.

The notice of appeal of each plaintiff was as follows:—

1. For an order that so much of the said judgment and order as directed that judgment be entered in favour of the defendants, McEntagart Brothers, Limited, be set aside with costs and that in lieu thereof judgment be entered against the said defendants, McEntagart Brothers, Limited, and the defendant, John Beggan, for the sum of £1,700, on the grounds that the learned trial Judge misdirected himself both in law and on the facts in finding and in directing the jury that the said defendant, John Beggan, was not driving the said motor car Z3206 on behalf of his employers, the defendants, McEntagart Brothers, Limited, and in refusing to submit any question to the jury in reference to the said defendants, McEntaggart Brothers, Limited, and, in the alternative, for an order directing a new trial between the plaintiff and the said defendants, McEntagart Brothers, Limited, upon the sole issue whether the said defendant, John Beggan, was acting within the scope of his employment as a servant of the said defendants, McEntagart Brothers, Limited, in the driving of the said motor car Z3206 which caused the injuries to the plaintiff while being driven by the said defendant, John Beggan, with liberty to the Judge at the trial of the issue if found in the plaintiff's favour to vary the said order and judgment for the sum of £1,700 entered against the defendant, John Beggan, by directing that judgment be entered against the defendant, McEntagart Brothers, Limited, and the said defendant, John Beggan, for the sum of £1,700 with costs.

2. In the alternative, for an order that so much of the said judgment and order of the learned trial Judge as directed that judgment be entered in favour of the defendants, Thomas, Robinson & Son, Limited, be set aside with costs and that in lieu thereof judgment be entered against the said defendants, Thomas Robinson & Son, Limited, and the defendant, John Beggan, for the sum of £1,700, on the ground that the learned trial Judge misdirected himself both in law and on the facts in finding and in directing the jury that there was no evidence that the said motor car Z3206 was being driven by the said defendant, John Beggan, as the servant or agent of the said defendants, Thomas Robinson & Son. Limited, and in refusing to submit any questions to the jury in reference to the said defendants, Thomas Robinson & Son, Limited, and, alternatively, for an order directing a new trial between the plaintiff and the said defendants, Thomas Robinson & Son, Limited, upon the sole issue whether the said defendant, John Beggan, in driving the said motor car Z3206 at the time of the causing of the injuries to the plaintiff was acting as the servant or agent of the said defendants, Thomas Robinson & Son, Limited, within the scope of his authority, with liberty to the Judge at the trial of the issue if found in the plaintiff's favour to vary the said order and judgment for the sum of £1,700 entered against the defendant, John Beggan, by directing that judgment be entered against the defendants, Thomas Robinson & Son, Limited, and the said defendant, John Beggan, for the said sum of £1,700 with costs.

3. In the further alternative, that the entire findings of the jury and the entire of the said judgment and order of the learned trial Judge be set aside and discharged with costs and a new trial of the action be directed, on the grounds that, by reason of the said directions of the learned trial Judge, namely, that there was no evidence (a) that the defendant, John Beggan, in driving the said motor car was acting as the servant or agent of the defendants, Thomas Robinson & Son, Limited, and (b) that the defendant, John Beggan, was driving the said motor car on behalf of his employers, the defendants, McEntagart Brothers, Limited, and of the refusal of the learned trial Judge to submit any question or questions to the jury in reference to the said defendants, Thomas Robinson & Son, Limited, and McEntagart Brothers, Limited, or either of them, and of the eliminations of the said defendants, Thomas Robinson & Son, Limited, and McEntagart Brothers, Limited, or either of them as defendants in the action as aforesaid, and the trial of the action was insufficient, incomplete and unsatisfactory, and for an order that the said defendants, Thomas Robinson & Son, Limited, and McEntagart Brothers, Limited, or either of them, may be ordered to pay the entire costs of the other parties to the trial already had in this action, and for such further or other order as to the Supreme Court may seem meet.

R. & Son, a company having its offices in England, employed T. to visit Ireland periodically. R. & Son had purchased a motor car for T. from McE. Bros., a firm of motor engineers carrying on business in Dublin, and this motor car was garaged free of charge in McE. Bros.' garage in Dublin when T. was not in Ireland. Neither T. nor R. & Son had an account with McE. Bros. T. wrote a letter to a subordinate of McE. Bros.' staff asking him to give this motor car a run "to shake off the cobwebs," adding that it was not possible for him to say when he would be in Dublin again. This subordinate left McE. Bros.' employment on the day on which this letter was received at their premises. Two days after the arrival of this letter B., who was an employee of McE. Bros., drove the motor car to a motor race and when returning knocked down and injured the two plaintiffs, each of whom brought an action for damages against the three defendants, R. & Son, McE. Bros. and B., suing them jointly, severally, or in the alternative. B. had not received any instructions from McE. Bros. to drive the motor car. At the close of the plaintiffs' case the trial Judge gave a direction in favour of R. & Son but declined to give a direction in favour of McE. Bros. Evidence was then given on behalf of McE. Bros. and at the close of the defence the trial Judge gave a direction in their favour. The jury found negligence against B. in each case and awarded damages. Plaintiffs appealed 1, against the direction given in favour of McE. Bros. and asked that it be set aside and that judgment be entered against McE. Bros. and B. for the amount found, alternatively, for a new trial limited to the issue whether B. in driving the said motor car was acting within the scope of his employment as the servant of McE. Bros. 2, Alternatively, the plaintiffs asked that the direction given in favour of R. & Son be set aside, and that judgment be entered against R. & Son and B. for the amount found, alternatively, for a new trial upon the issue whether B. in driving the said motor car was acting as the servant or agent of R. & Son, within the scope of his authority; 3, in the further alternative that the findings of the jury and the entire of the judgment and order of the trial Judge be set aside and that a new trial of the actions be directed.

Held by the Supreme Court (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting) that the direction in favour of R. & Son was correct, and that the appeals must be dismissed so far as they dealt with that direction.

Held further (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting) that the direction in favour of McE. Bros. was correct and that the appeals must be dismissed so far as they dealt with that direction.

Per Kennedy C.J.:—1, The direction in favour of McE. Bros. should

be set aside and a new trial directed upon the question as to whether B. was on the occasion acting in charge of the firm's business; the finding as to damages for negligence against B. to stand as to amount, not having been changed by McE. Bros., and be entered against them if the jury answered the question in the affirmative; and 2, that there was no evidence of any liability on the part of R. & Son, and accordingly the trial Judge's direction in their favour must stand and the appeals must be dismissed so far as they dealt with that direction.

Per FitzGibbon J.:—There was no evidence upon which the jury could find that B. was acting in the course of his employment as servant of either McE. Bros. or of R. & Son, and that the directions given by the trial Judge were right and should be sustained.

Per Murnaghan J.:—The circumstances in which T.'s letter was written showed that it was an authority to McE. Bros. to supply a driver who, while acting within the terms of the letter, must be held to be a servant of R. & Son. Without disturbing the findings as to negligence and as to damages a new trial should be directed against R. & Son with power to the trial Judge to enter judgment against B. and R. & Son if the latter...