Morris v C. W. Martin & Sons Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK,LORD JUSTICE SALMON
Judgment Date19 May 1965
Judgment citation (vLex)[1965] EWCA Civ J0519-1
Date19 May 1965

[1965] EWCA Civ J0519-1

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge Wingate-Saul Southwark County Court

Before

The Master of the Rolls (Lord Denning)

Lord Justice Diplock and

Lord Justice Salmon

Morris
Plaintiff Appellant
and
C. W. Martin & Sons Limited
Defendants Respondents

MR E. W. EVELEIGH, Q. C. and MR M. ANWYL-DAVIES (instructed by Messrs Herbert Smith & Co.) appeared as Counsel for the Appellant.

MR LEONARD LEWIS (instructed by Messrs B. A. Woolf & Co.) appeared as Counsel for the Respondents.

THE MASTER OF THE ROLLS
1

On 7th January, 1962, Mrs Morris sent her long white mink stole to be cleaned. She sent it to Mr. Beder, a furrier, in Brook Street. He did not do cleaning himself. So he telephoned to her and offered to send it away to a reputable cleaner to be cleaned. He said he would send it to Martins, one of the biggest cleaners in the country. She knew then and left it to Mr. Beder to get it done for her. Martins only worked for the trade and not for private individuals. They had issued printed conditions of trading to Mr. Beder of which he was well aware. They were the conditions current in the trade called "The Fur Dressers and Dyers Conditions of Trading, 1955". Four of these conditions are material:-

2

"5. Subject to Clause 14 hereof all work including cleaning dressing dyeing re-dyeing striping shearing or other processing is undertaken at customer's risk only…."

3

"9. All goods belonging to customers whether upon or in the Company's premises or care or in course of transit to or from the Company's premises are held or transported at the customer's risk and the Company shall not be responsible for loss or damage however caused.

4

Customers in their own interests arc advised to insure the goods against all risks and in particular against loss or damage by fire burglary housebreaking theft storm tempest and flood……"

5

"14. Subject to Clauses 10 and 15 hereof the Company undertakes to compensate the customer for the loss of or damage to the goods during processing by reason of the Company's negligence or that of its servants or agents but not by reason of any other cause whatsoever".

6

"16. No claim of whatsoever nature will be entertained from any customer in the United Kingdom unless made in writing within seven days of the date of invoice of the goods by the Company to the customer and in the case of direct export within seven days of arrival at the local port or place of inspection. The Company will not be bound in any way by any settlement between the customer and his own customer or by any survey or award as between than unless the Company has previously agreed or been a party there to".

7

Mr Beder got into touch with Martins, told them he had a mink stole for cleaning and asked them to collect it. They did. so on 9th January, 1962. Mr Beder was their customer but they no doubt knew that the fur did not belong to him but to his own customer.

8

Whilst the fur was with Martins it was stolen by one of their servants named Morrissey. He was a youth who had onlybeen in their employ for about two months, but they had no reason to suspect his honesty. It was Morrissey's duty to clean the fur in a special room for cleaning white furs. Morrissey got the key of the room from the foreman. He should have cleaned it in the machine, locked up the room, and placed the fur ready for inspection. Instead of doing so, he seems to have wound the fur round his body under his coat: and he managed to leave the premises after the day's work without anyone detecting him. He was afterwards convicted of theft, but not this theft. But the fur has never been recovered. The Judge found that Mr. Beder made the contract with the cleaners on his own account and not as agent for Mrs. Morris. It was Mr. Beder, and not Mrs. Morris, who was liable to the cleaners for the charges for cleaning. He found that the cleaners took all proper steps to safeguard the goods with which they were entrusted and they were not negligent in employing Morrissey. The Judge decided that the cleaners were not liable because "the act of Morrissey in secreting the stole on his person and removing it from the defendants' premises was not done in the scope of his employment" He felt bound by Cheshire v. Bailey, 1905, 1 King's Bench, p. 237.

9

Mrs. Morris appeals to this Court. The case raises the important question of how far a master is liable for theft or dishonesty by one of his servants. If the master has himself bean at fault in not employing a trustworthy man, of course he is liable. But what is the position when the master is not himself at fault at all?

10

The law on this subject has developed greatly over the years. During the 19th century it was accepted law that a master was liable for the dishonesty or fraud of his servant if it was done in the course of his employment and for his master's benefit. Dishonesty or fraud by the servant for his own benefit took the case out of the course of his employment. The Judges took this simple view: No servant who turns thief andsteals is acting in the course of his employment. He is acting outside it altogether. But in 1912 the law was revolutionised by the case of Lloyd v. Grace Smith. 1912 Appeal Cases, p. 716, where it was held that a master was liable for the dishonesty or fraud of his servant if it was done within the course of his employment, no matter whether it was done for the benefit of the master or for the benefit of the servant. Nevertheless there still remains the question: What is meant by the phrase "in the course of his employment"? When can it be said that the dishonesty or fraud of a servant, done for his own benefit, is in the course of his employment?

11

On this question the cases are baffling. In particular those cases, much discussed before us, where a bailee's servant dishonestly drives a vehicle for his own benefit. Those stretch from Coupe Co. v. Maddick, 1891, 2 Queen's Bench, p. 413, to the present day. Let me take an illustration well fitted for a moot. Suppose the owner of a car takes it to a garage to be repaired. It is repaired by a garage hand who is then told to drive it back to the owner. But instead, he takes it out on a "frolic of his own" (to use the 19th century phrase) or on a "joy-ride" (to come into the 20th century). He takes it out, let us say, on a drunken escapade or on a thieving expedition. Nay more, for it is all the same, let us suppose the garage-hand steals the car himself and drives off at speed. He runs into a motor-cyclist. Both the car and the motor-cycle are damaged. Both owners sue the garage proprietor for the negligence of his servant. The motor-cyclist clearly cannot recover against the garage proprietor for the simple reason that at the time of the accident the servant was not acting in the course of his employment, see Storey v. Ashton (1869) Law Reports, 4 Queen's Bench, p. 476. You might think also that the owner of The car could not recover, and for the self-same reason, namely, that the servant was not acting in the course of his employment, And before 1912 the Courts would undoubtedly have so held, see Sanderson v. Collins, 1904, 1 King's Bench, p. 628, Cheshire v. Bailey, 1905, 1 King's Bench, p. 237, as explained by Lord Shaw in Lloyd v. Grace Smith itself, 1912 Appeal Cases at p. 741. But since 1912 it seems fairly clear that the owner of the damaged car could recover from the garage proprietor, see Central Motors (Glasgow) Ltd. v. Cessnock Garage & Motor Co., 1925 Session Cases, p. 796. on the ground that, although the garage-hand was using the car for his own private purposes, "he should be regarded as still acting in the course of his employment", see Aitchison v. Page Motors. (1935) 52 Times Law Reports, pp. 137, 138, and even if he stole the car on the journey, it was a conversion "in the course of the employment", see United Africa Co. v. Saka Owoade, 1955 Appeal Cases, pp. 130, 144. I ask myself, How can this be? How can the servant, on one and the same journey, be acting both within and without the course of his employment? Within qua the car owner. Without qua the motorcyclist. It is time we got rid of this confusion. And the only way to do it, so far as I can see, is by reference to the duty laid by the law on the master. The duty of the garage proprietor to the owner of the car is very different from his duty to the motor-cyclist. He owes to the owner of the car the duty of a bailee for reward, whereas he owes no such duty to the motor-cyclist on the road. He does not even owe him a duty to use care not to injure him.

12

If you go through the cases on this difficult subject, you will find that in the ultimate analysis, they depend on the nature of the duty owed by the master towards the person whose goods have been lost or damaged. If the master is under a duty to use due care to keep goods safely and protect them from theft and depredation, he cannot get rid of his responsibility by delegating his duty to another. If he entrusts that duty to his servant, he is answerable for the way in which the servant conducts himself therein. No matter whether the servant be negligent, fraudulent, or dishonest, the master isliable. But not when he is under no such duty. The cases show this:

13

(i) Gratuitous Bailment. Suppose I visit a friend's house and leave my coat with his servant in the hall, so that by friend becomes a gratuitous bailee of it, see Ultzer v. Nicola, 1894, 1 Queen's Bench, p. 92. On my departure, I find my coat has gone. The servant who was entrusted with it has stolen it without my friend's fault. He has converted it, it may be said, in the course of his employment. But nevertheless my friend is not liable for the loss, because he was not under any duty to prevent it being stolen, but only to keep it as own. "The law is not so unreasonable", said Chief Justice Holt, "as to charge a man for doing such a friendly...

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