190 RELATIONSHIP OF MASTER AND SERVANT. 



ring its existence, as — e.g., the occasional or frequent use of 

 the master's gig by the servant, (a) The contract of service 

 itself may afford evidence, or the periods of payment of wages, 

 or the fact of special agency for a particular business ; or the 

 intervention of the authority of a contractor, or assumption 

 of control of driving by a third party. But these are not 

 conclusive, the true test in all cases being whether the 

 alleged master had or had not direct or implied control over 

 the servant's actions when the injury occurs ; whether the ser- 

 vant received his wages from the master and could be removed 

 by him for misconduct, and was bound to obey his orders. (6) 

 If one hire a carriage and horses and the owner orders his 

 own servant to drive them, the owner is responsible for his 

 servant's negligence ;(c) and where the owner of a carriage 

 hires horses and a driver by the day, the jobmaster is liable 

 for the driver's negligence ; {d) and it makes no difference 

 that the owner of the carriage has always been driven by the 

 same driver, he being the only coachman employed by him ; 

 or that he was paid a fixed sum for each drive, or that he 

 wore his livery. (e) If two persons hire a carriage, each is 

 jointly liable for the damage caused by either, as they are joint 

 possessors at the time ; but if it be hired by one only, the hirer 

 and not the passenger is liable ; (/) and to make a third 

 party liable for the negligence of a driver, the relation of 

 master and servant must exist between th.em..{g) Again, when 

 the lessor and the servant of the owner of a hired horse and 

 carriage drive together, if the lessor might have controlled the 



(«) Patten v. Rea, 1857, 2 C.B., N.S. 606. 



(6) Parke, B., in Quarman v. Burnett, 1840, 6 M. and W. 499 ; Shiclls v. E. cfc 

 O. Ry. Co., 1856, 18 D. 1199 ; and Lord Gilford in Stephen v. Thurso Police Com- 

 missioners, 1876, 3 R. 535. 



(c) Smith V. Lmvrence, 1828, 2 M. and Ey. 1 ; Samviel v. Wright, 1805, 5 Esp. 

 263. 



(fZ) Smith, cit. 



(e) Quarman, cit., which decided this point left open in Laugher v. Pointer, 

 1826, 5 13. and C. 547. 



(/) Davey v. Chamberlain, 1802, 4 Esp. 229. 



{g) Moffat V. Bateman, 1869, L.R. 3 P.C. App. 115 ; see also Martin v. ITrtrrfs, 

 1887, 14 R. 814. 



