Opinion oe the Court, by
McCully, J.This was an action of trespass on the case, arising out of a collision of horses, in which the plaintiff’s horse received a fatal injury. It was tried before Biokerton, J., without a jury, who ordered judgment for the plaintiff. The defendant took the following exceptions, viz:
1. To the finding that Frank Lillis, the driver of the express (hack) which collided with the plaintiff’s team, was defendant’s servant.
2. To the refusal of the Trial Justice to find that the plaintiff was guilty of contributory negligence in driving without lights.
3. That the damages are excessive.
The evidence as taken by the court stenographer is appended to the Bill of Exceptions; such parts of it as are necessary will be found in. the opinion.
*169The defendants are D. H. Davis and H. R. Macfarlane, doing a livery and hack business as The Pantheon Stables. They have several hacks, for each of which they take a license and pay a fee to the Government. This is distinct from the license paid for their general livery business. The hacks are numbered and the license applies to the hack by its number. The drivers are individually licensed by numbered licenses as drivers.
Prank Lillis, who drove the hack in the collision, had the use of a hack with two horses of the defendant at #30 per week. The carriage and horses were maintained and stabled by the defendant. The driver took them out whenever he pleased and plied them as a public hackman, getting what fares he could. His remuneration would be rvhat he made above the #30 per ■week. He was licensed under the following request from the defendant, addressed to the Inspector of Drivers and Hacks: “Please give Frank Lillis license for driving No. 49.” This is done by the provisions of Chapter 27 of the Acts of 1884, viz., “Any person or firm having one or more licensed vehicles may make application to the Marshal or his deputy for a certificate to enable a person to obtain a license to drive; and the Marshal or his deputy, on being satisfied that the person recommended by the applicant is a competent driver, shall grant him a certificate to that effect, upon presentation of which to the Minister of the Interior the person applying shall recei ve a license, which license shall be used only and be valid so long as the person receiving the same shall remain in the employ of and drive for the person or persons making the application for such license; the fee for which shall be the sum of one dollar and which license shall remain in force for one year.”
The stables did not prescribe the hours or direct the efforts of the drivers in obtaining business. It maintained a stand where hacks in waiting might stand, and a telephone and service of it through which their hacks might receive orders. There were more applicants for the position of hack drivers than they had carriages to let. “We have quite a number of applications; we could not accept them all as we have not hacks *170enough. We have applications that we turn away frequently, because we know they are unfit.” (Testimony of Davis, deft.) The stables claimed the right to take away the carriage of any driver who was drinking or intoxicated, altogether or for such time' as it judged fit. “If any of our hack-drivers misbehave sufficiently to warrant it, I discharge them.” [Ibid.) This right had been exercised towards Frank Lillis on the day of the collision. His hack had been taken away from him and put in the stable on account of his intoxication. About one or two o’clock he asked Mr. Davis for it, who answered: “No, you can’t have your hack.” “I saw he had been drinking something. ‘Well,’ he says, ‘I have got a load at the hotel at four o’clock,’ and I said, ‘you go home and sleep and come back at four o’clock and you can have your hack.’ ” (Testimony of Davis.) The foreman of the stables, Cavanaugh, testifies that he had orders to take away the team of any one drunk, and that he took away Lillis’ this day and restored it to him about four o’clock p. M.
Under these circumstances was Lillis the servant of defendant? A case in point is that of Powles vs. Hider, 6 Ellis & Blackburn, 208. The defendant was the owner of cabs in London. Drivers, who by Act of Parliament must be licensed, paid defendant a sum each day for the use of the cab and two horses for fifteen hours, the driver depositing his license with the owner of the cab. Every cab was plainly marked with the name of the owner, and was licensed.
It was held that the defendant owner was liable as for the act of his servant for the value of baggage lost through the negligence of the driver. Lord Chief Justice Campbell said that if the contention of the defendant was right, that in point of law the cab and horses were let to hire to the driver, and that the driver became the bailee, he could not render the defendant liable; but, “looking to the position of the proprietor and the driver of the cab under the circumstances proved, and to the Acts of Parliament which regulate their respective duties, we are of opinion that the driver is to be considered the servant or agent of the proprietor. There can be no doubt that this would *171be so if the driver were engaged at fixed wages, accounting to the proprietor for all the earnings of the cab. But must not the actual arrangement between them be equally considered a mode by which the proprietor receives what may be estimated as the average earnings of the cab, minus a reasonable compensation for his labor?”
The circumstances of this case, and the law, bring the case at bar within this reasoning. The defendants had “recommended” Lillis to be licensed as a driver of one of their cabs, and his license was valid only so long as he drove for them. They had selected him out of a large number making application. They had the power to discharge him for misconduct, or to suspend him for any time. His hack proceeded from the defendants’ stand, and bore the number of one of their licenses. He was not directed by the defendants as to the hours of his service, or provided with business by them, the terms of his service imposing diligence on him, and avoiding for the defendants the risk of a dishonest accounting. For illustration, let it be that a person had hired a carriage and horses of the defendants for a hack business of his own, procuring a license for the hack, and for himself as a driver. Doubtless the hirer would be the bailee of the property, and the defendants would not be liable for his contracts or torts. Such a case would be materially different from this under consideration, and the difference would constitute the one person a servant and the other a bailee.
This conclusion may also be considered a statute interpretation or condition, from the words “ which license shall be used only and be valid so long as the person receiving the same shall remain in the employ of and drive for the person or persons making application for such license,” and our decision might be based on this solely.. Any other conclusion would nullify the apparent purpose and objects of the law requiring licenses for hacks and licenses for drivers, which are to place them under police control, and to identify the carriages and drivers.
The finding that the plaintiff was not guilty of contributory negligence in driving without lights in this particular case, and the determination of the value of the plaintiff’s horse, are upon *172matters of fact. Examining the evidence, we find no reason for setting them aside; on the contrary, they are well supported.
The exceptions are overruled.