Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Company
| Jurisdiction | Scotland |
| Judgment Date | 27 June 1925 |
| Date | 27 June 1925 |
| Docket Number | No. 90. |
| Court | Court of Session |
Lord Blackburn, Lord President (Clyde), Lord Cullen, Lord Sands.
Contract—Breach of contract—Locatio operarum—Locatio custodiœ—Master and Servant—Motor car left in custody of garage owner—Night watchman at garage removing car for his own purposes—Accident involving damage to car—Liability of garage owner.
A motor car was entrusted by its owners to a firm of garage proprietors for safe custody over night. During the night the night watchman in charge of the garage took the car out for his own purposes, contrary to his employers' instructions and without their knowledge. While being driven by the night watchman the car collided with another car and was damaged. In defence to an action of damages by the owners of the car against the proprietors of the garage the defenders pleaded that their servant had acted outwith the sphere of his employment, and, accordingly, that they were not liable for the consequences of his conduct.
Held that, as the defenders had delegated their duty of keeping the car safely secured in the garage to their servant, they were liable to the pursuers for the servant's failure in performance; and decree granted.
Opinion reserved, per the Lord President, upon the general question whether the misconduct of a defender's servant can ever be a good defence to an action for breach of a contract of locatio operarum.
Lloyd v. Grace, Smith, & Co.ELR, [1912] A. C. 716, followed per the Lord President and Lord Cullen.
On 8th December 1923 the Central Motors (Glasgow), Limited, 91 Hope Street, Glasgow, brought an action against the Cessnock Garage and Motor Company, 9 Cessnock Street, Ibrox, garage proprietors, and I. Irvine, the sole partner thereof, concluding for decree for £525, being the damage alleged to have been sustained by the pursuers in consequence of a motor car belonging to them, and garaged with the defenders, having been taken out of the garage by a servant of the defenders, and, while being driven by that servant, having been damaged in a collision.
The following narrative of the circumstances giving rise to the action is taken from the opinion of the Lord Ordinary:—‘The pursuers and the defenders both carry on motor businesses in Glasgow. The defenders' business, prior to 6th July 1923, belonged to Messrs Irvine & Rankine, but on or about that date Mr Rankine retired, and the business was purchased by Mrs Irvine, and was thereafter managed by her and her husband. Mrs Irvine, however, is the sole partner in the business.
‘It is part of the defenders' business to stable in their garage cars which do not belong to themselves. The pursuers being short of accommodation in their own garage arranged with Messrs Irvine & Rankine in the month of June 1923 for such accommodation as they might require at an agreed-on rate per car. This arrangement was continued after the defenders acquired the business.
‘On the 10th of October 1923, at about 9 p.m., Mr Stewart, the pursuers' salesman, arrived at the defenders' garage with a new Swift car, which he had driven from Coventry and which was to be delivered next day to Mr Paul, a customer of the pursuers in Glasgow. He handed over the car to Mr Irvine who was in the garage at the time, and instructed him to have it hosed down and treated with special care. To avoid any necessity for moving the car during the night, Mr Stewart himself drove the car on to the washing place in the garage, where he left it. A little later in the evening the garage and car were left by Mr Irvine in the custody of the witness Thomson, who had been in the defenders' employment as night watchman from the 18th of September of the same year. Thomson was given special instructions by Mr Irvine to be careful of the pursuers' new car, and admits that he quite understood that he was not to start up the engine. In the course of the evening Thomson took the car out of the garage, and drove it to his club in the neighbourhood, where he got very drunk. He afterwards took some friends for a run, and was in course of driving the secretary of the club to his home when he came into collision with another car, as the result of which the pursuers' car was damaged. He was arrested by the police on a charge of driving a car while in a state of intoxication, and the damaged car was placed by them in a garage belonging to a Mr Henderson, where it remained until the raising of this action. Next day the pursuers' customer, Mr Paul, declined to accept delivery of the car even if repaired, and they eventually had to purchase a new car from the makers to implement their contract with him. They then raised the present action, in which they sue for £525 as damages. The defenders deny liability, and in any event dispute the amount of damage.’
The pursuers pleaded, inter alia:—‘(1) The defenders, as garage-keepers who accept the cars of members of the public and travellers for safekeeping, having accepted for hire the care and custody of the pursuers' said car, and having failed to return it to them in the like good order in which they received it, and no inevitable accident having occurred, are liable to the pursuers for the damages occasioned to the car during the period in which it was entrusted to them. (2) The defenders, being in breach of the contract of custody and safekeeping as alleged, et separatim being in breach of the express undertaking not to start the engine during the night, are liable to the pursuers in the loss caused by such breach.’‘(4) The pursuers having suffered loss through the fault of the defenders or their servants for whom they are responsible, decree should be pronounced as concluded for.’
The defenders pleaded, inter alia:—‘(1) The pursuers' averments being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed.’‘(4) The damage complained of having been caused by the unauthorised actings of Thomas Thomson done outside the scope of his employment, the defenders are entitled to be assoilzied.’
A proof was allowed and led, and thereafter, on 28th June 1924, the Lord Ordinary (Blackburn) decerned against the defenders for payment to the pursuers of the sum of £150 in full of the conclusions of the summons.
Lord Blackburn's opinion.—[After the narrative quoted supra, and after dealing with a point with which this report is not concerned, his Lordship proceeded]—In the view I take of the facts as proved, the defenders agreed to take charge of the pursuers' cars without any condition other than the terms of payment. They thus undertook the custody and safekeeping of this car, and that duty they delegated for the night to their servant Thomson. It was argued for the defenders that, because Thomson was their servant and by appropriating the car to his own use had disobeyed the express instructions given to him, he had acted outwith the terms of his employment, and had relieved the defenders of all responsibility for his actings. In support of this contention two cases—Sanderson v. CollinsELR, [1904] 1 K. B. 628, and Cheshire v. BaileyELR, [1905] 1 K. B. 237—were referred to, in both of which it was held that the plaintiff was not entitled to recover damages from the defendant for injury sustained to his property at the hands of the defendant's servant. In each of these cases the contract between the plaintiff and the defendant was one of hiring, and in each it was held that, at the time the injury was suffered, the defendant's servant was acting outwith the terms of his employment. The decisions in these cases do not appear to me to apply necessarily to the present case, where the contract was one of custody, and where the safekeeping of the car had been delegated to the servant of the defenders who was actually employed on this duty at the time when it sustained injury at his hands. In my opinion the decision of the House of Lords in the more recent case of Lloyd v. Grace, Smith, & Co.ELR, [1912] A. C. 716, in which it was held that a firm were responsible for the fraud committed by their managing clerk in the course of his employment, is more directly applicable to the present case, and I refer to the speech of Lord Macnaghten in that case, and in particular to his remarks at page 738.
Accordingly, in my opinion, the defenders must be held responsible for the negligence of their servant without the necessity of establishing any direct negligence on their own part. Had I thought such proof necessary, there is evidence in the case which is sufficient, in my opinion, to instruct their negligence. I do not think that they took proper precautions to ascertain whether Thomson was sufficiently reliable for the duties they entrusted to him. They accepted written references exhibited by him without making any inquiries from the writers or from his recent employers, although they knew with whom he had been employed shortly before they engaged him. Further, I think they might have discovered that, during the three weeks of his employment by the defenders, Thomson, according to his own admission, had been in the practice of taking strangers' cars out of the garage whenever he wanted to do so. I may add that there is evidence that on one occasion Mr Irvine himself was guilty of taking out a car of the pursuers' without authority, which suggests that the defenders did not regard such an action as inconsistent with the duties of a custodier, although both Mr and Mrs Irvine deny this in their evidence. [His Lordship then dealt with the amount of damages, which he assessed at the sum of £150.]
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