Catherine Dansey against Elizabeth Frances Richardson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1095
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 2 C. L. R. 1442; 23 L. J. Q. B. 217; 18 Jur. 721. For subsequent proceedings see 3 El. & Bl. 722. Discussed, Holder v. Soulby, 1860, 8 C. B. N. S. 266. Followed, Scarborough v. Cosgrove, [1905] 2 K. B. 805.
catherine dansey against elizabeth frances richardson. 1854. Declaration, that defendant, being a boarding housekeeper, received plaintiff with her baggage, for reward, as a guest in defendant's house, on the terms, amongst others, that defendant should " take due and reasonable care " of plaintiff's baggage, whilst in the house. Breach : that by negligence of defendant and her servants plaintiff's baggage was lost. Pleas: Not Guilty ; and a traverse of the receipt on those terms. Issues thereon.-On the trial, it appeared that plaintiff was received, with her baggage, as a guest; but nothing was expressed as to the care to be taken of the goods. The goods were stolen from the house whilst plaintiff was a guest; and there was evidence that the theft was facilitated by the defendant's servant having left the front door ajar: and there was also some evidence that defendant was aware of habitual negligence of the servant in this respect. The Judge told the jury that a boarding housekeeper was bound to take due and reasonable care about the safe keeping of the guest's goods: which he explained to be such care as a prudent housekeeper would take of the house for the purpose of protecting her own goods : that the leaving the door ajar might be a want of such care; but that the defendant was not answerable for such negligence in the servant, unless she had herself been guilty of some negligence, as in keeping such a servant with knowledge of his habits. Verdict for defandant on Not Guilty: for plaintiff on the other plea.-On a rule for a new trial:-Held, by the whole Court, that a boarding housekeeper is not bound to keep a guest's baggage safely, to the same extent as an innkeeper; but that she undertakes, by implication of law although nothing is expressed, to take due and proper care of a guest's baggage; and that neglecting to take due care of the outer door might be a breach of such duty, and that so far the direction was right.-Erie J. and Wightman J. held that, unless the defendant herself was guilty of negligence, the act of the servant, in leaving the door ajar, was not one for which defendant was responsible; it not being a neglect of any public duty which was owing to plaintiff, and not being a breach of a contract between plaintiff and defendant, but merely negligence of the servant towards his mistress : and that therefore the direction was right.-Coleridge J. and Lord Campbell C.J. held that the act of the servant was, under the circumstances, the act of the defendant; and that there was no distinction between the personal negligence of the defendant, and that of her servant in her employment, the defendant being equally answerable for both : and therefore they held that the direction was wrong.-The Court being equally divided, no new trial was granted. [S. C. 2 C. L. E. 1442 ; 23 L. J. Q. B. 217 ; 18 Jur. 721. For subsequent proceedings, see 3 El. & Bl. 722. Discussed, Holder \. Soulby, I860, 8 C. B. N. S. 266. Followed, Scarborough v. Cosgrove, [1905] 2 K. B. 805.] Case (a)2. Declaration, averring that defendant kept a boarding house in which she was in the habit [145] " of receiving persona, accompanied by their baggage, apparel, goods and chattels, as guests, to be in the said house found and provided by the defendant with the use and occupation of rooms, apartments and furniture of the defendant's, and with meat, drink, servant's attendauce and other necessaries therein, for certain hire and reward, in that behalf to be therefore paid by such guests to the defendant." Averment: that plaintiff, at the request of " defendant so then keeping the said boarding house, came to and put up at the same, as such guest as aforesaid, and then brought with her unto the same certain personal baggage of her, the plaintiff, to wit" a dress- (a)1 Lord Campbell C.J., Coleridge, Erie and Crompton Js. (a)* The pleadings in this case were made up before the Common Law Procedure Act came into operation. 1096 DANSEY V. RICHARDSON 3 EL. & BL. 146. iug case. Averment: that plaintiff then became a guest on the terms that defendant was to provide plaintiff with rooms, &c., and " with meat, drink, servants, attendance and other necessaries therein as aforesaid, and to take due and reasonable care of the said goods of the plaintiff whilst the same were in the said bouse and whilst the plaintiff was auch gueat therein as aforesaid, for hire and reward to the defendant in that behalf:" and that it then became the duty of the defendant to observe the terms so set out. Breach : that defendant and her servants so negligently conducted themselves that, through the negligence of defendant and her servants, the dressing case was lost. [146] Plea 1. Not guilty. 2. That defendant did not keep such boarding house in manner and form, &c. 3. That plaintiff did not become such guest in manner and form &c. 4. That plaintiff and her goods were not received on the terms in the declaration mentioned. On which issues were joined. On the trial, before Erie J., at the Middlesex Sittings in Hilary term 1853, it appeared that defendant kept a boarding house, and plaintiff became a guest of defendant, but that no terms were named as to care being taken of her luggage ; that her dressing case was stolen ; and there was evidence, to go to the jury, that the thief got at the dressing case by entering through the front door of the house, which defendant's servant had left ajar when going on an errand for plaintiff: and there was also evidence, to go to the jury, that the leaving of the door ajar was habitual negligence on the part of the servant, and that defendant had kept him, knowing that he was so habitually negligent. The details of this evidence will be found more fully stated in the judgment of Coleridge J. (post, p. 157). The counsel for defendant objected that there was no evidence of the terms, put in issue by the fourth plea. The learned Judge ruled that there was evidence. The case went to the jury : and the learned Judge, in substance, told them that a boarding house keeper had not the unlimited liability of an innkeeper, but was bound to exercise due and reasonable care as to the guest's property, to the same extent which a prudent person would take of her own. The effect of the direction was to leave to them the question whether the goods were lost in consequence of the want [147] of such care on the part of the defendant : and, in explaining this, the learned Judge pointed out to them that the evidence was conflicting on three points : 1st, whether the loss was occasioned by the negligence of the servant in leaving the door ajar ; 2d, supposing there was such negligence, whether the defendant was aware of any thing which made it negligent in her to keep that servant; and, 3d, whether the plaintiff herself was a party conducing to the loss. He told the jury that it would not be enough, to fix the defendant, if they thought the servant was so negligent, unless they answered the second question also in the plaintiff's favour; and that then the third questions would arise. Verdict for defendant upon the issue on the plea of Not guilty; for the plaintiff on the other issues. Chambers, in the same term, obtained a rule Nisi for a new trial on the ground of misdirection. In Easter Term 1853 (a), Bramwell shewed cause, and Pearson was heard in support of the rule. The Court directed a second argument: and, in Michaelmas term last(i), Bramwell shewed cause, and Chambers was heard in support of the rule. The judgments render any statement of the arguments unnecessary (c). Cur. adv. vult. [148] In this term (January 30th), the Court being divided in opinion, the learned Judges delivered separate judgments. Erie J. The declaration alleges that the plaintiff, with her goods, had been received by the defendant in a boarding house, on the terms, among other things, of taking due and proper care of the goods; and that they were lost by defendant's negligence. (a) April 25th. Before Lord Campbell C.J. and Erie J. (b) November 14th. Before Lord Campbell C.J., Coleridge, Wightmau and Erie Js. (c) In addition to the authorities noticed in the judgment, the following were men tioned ; 5 Bac. Abr. 366 (7th ed.) tit. Master and Servant, and Apprentice (K); Middletmi v. Fowler (1 Salk. 282); Boson v. Sandford (2 Salk. 440; S. C. 1 Show. 39); Barnes v. Ward (9 Com. B. 392); Collett v. London and North Western liaihuay Company (1C Q. B. 984); White v. Humphery (11 Q. B. 43). 3BL.&BL. 149. DANSEY V. RICHARDSON 1097 The material pleas are : The general issue, and a denial of receiving the goods on the terms alleged. The fact*, as far as they are material to the alleged misdirection, are, that the plaintiff with her goods had been received as a guest in the defendant's boarding house, od terms for board and attendance, in which terms no mention was made of goods; and that a servant, going out on a short errand for her, had left the front door ajar, through which a thief had entered and stolen her goods, namely a dressing case. As to this and other matters, there was conflicting evidence raising several questions of liability against the defendant. The jury were, in effect, directed, as to the part of the case now to be considered, that the defendant was not bound to take more care of her house and the things in it than a prudent owner would take, and that, if upon the conflicting evidence, they found that the door was negligently left ajar by the servant, but that this was the only evidence to fix the defendant with negligence, the plaintiff would fail. And I remarked that, if the defendant had taken the...
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