Olley v Marlborough Court
| Jurisdiction | England & Wales |
| Judgment Date | 1949 |
| Date | 1949 |
| Court | Court of Appeal |
Negligence - Residential hotel and boarding-house not constituting “an inn” - Notice under Innkeepers' Liability Act, 1863 conspicuous in hall - Notice in bedroom: “Proprietors will not hold themselves responsible for articles lost or stolen, unless handed to manageress for safe custody” - No exemption from liability for negligence of hotel servants - Contract of guest for indeterminate period, before guest sees notice - Notice not part of contract - Guest hangs bedroom key on key-board in reception office - Key stolen from hey-board - Goods stolen from guest's bedroom - Lack of reasonable care by hotel servants - Onus of proof.
A notice in the bedroom of a private residential hotel stated: “The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody. Valuables should be deposited for safe custody in a sealed package and a receipt obtained.” A notice pursuant to s. 3 of the
A man and his wife, on arrival at the hotel as guests, in accordance with the custom of the hotel paid for a week's board and residence in advance. They then went upstairs to the bedroom allotted to them, where the first-mentioned notice was displayed.
Held, by SINGLETON and DENNING L.JJ., that the terms of the notice in the bedroom formed no part of the contract made between the guests and the proprietors of the hotel. The contract had been made before the guests could see the notice. It was for an indeterminate period, to which an end could be put by notice on either side, and the terms of the notice in the bedroom could form no part of the contract until that contract had been so terminated.
Per DENNING L.J.: Persons who rely on a contract to exempt themselves from their common law liability must prove that contract strictly. The best way of proving such a contract was by a written document signed by the party to be bound. Another way was by handing to him before or at the time of the contract a written notice, specifying its terms, and making it clear to him that the contract was on those terms. A prominent public notice which was plain for him to see when he made the contract or an express oral stipulation would, no doubt, have the same effect. But nothing short of one or other of these three ways would suffice.
On the issue of construction of the notice in the bedroom Held by BUCKNILL L.J., that a person reading the two notices, (that in the bedroom and that in the hall) would not think that the notice in the bedroom was intended to exempt the proprietors of the hotel in respect of loss or theft due to the negligence of their servants; and by SINGLETON and DENNING L.JJ. that, on the assumption that the house was not a common inn, the notice in the bedroom did not exempt the proprietors of the hotel in respect of loss or theft due to the negligence of their servants.
A resident guest at this hotel closed the self-locking door of the bedroom, went downstairs and hung the Yale key of her bedroom door on the hook marked with the number of her room on the key-board provided for that purpose in the reception office. She then left the hotel. On her return she found the key missing from the key-board and certain furs and other property of hers missing from her bedroom. It was found that the property had been stolen by a stranger through the negligence of the hotel proprietors' servants.
Per DENNING I..J.: As to the negligence of the hotel company and the onus of proof — When the plaintiff put the key of her room on the hook in the reception office, she put it in charge of the hotel company. It gave access to her room, and it was their duty to take reasonable care to see that it was not taken by any unauthorized person. It was so taken, and consequences followed which might reasonably have been foreseen, viz., the thief used it to get into the bedroom and steal. At common law the hotel proprietors were liable for the loss, unless they discharged the burden of proving that they took reasonable care of the key.
Appeal from Oliver J.
The plaintiff Mrs. V. E. Olley and her husband stayed as guests for reward in the defendants' hotel, which had about a hundred rooms and was mainly residential, from May, 1945, to February, 1947. When they first went to the hotel they were asked in accordance with the custom of the hotel to pay for a week's board and residence in advance. That they did and then proceeded to the bedroom allotted to them. On November 7, 1945, at about 11 a.m., the plaintiff left her bedroom on the third floor, closed the self-locking door, went downstairs to the hall and thence into the reception office, hung the Yale key of her room on the hook marked with the number of her room on the keyboard provided for the purpose, and went out of doors. To one entering the hotel by the main entrance there was a lounge on the right and the reception office faced the entrance, with an “L” shaped counter enclosing it. Access from the hall to the reception office was obtained by raising a flap in the counter. In a conspicuous place nearby there was displayed a notice complying with the terms of s. 3 of the
At about 3 p.m. on the same day a Colonel Crerer was talking with a fellow guest in the lounge of the hotel when he noticed a young man come in at the main entrance of the hotel walk straight through into the reception office, come out again, walk past the staircase to the self-operating passenger lift, and ascend therein. At the foot of the staircase as he passed was a bust of the Duke of Marlborough which the porter on duty was busily engaged in cleaning. There was a receptionist whose turn of duty it was to be at the reception office at the time when the young man entered it; but there was no evidence whether or not she was temporarily absent at the time, since Colonel Crerer could not see into the office from where he was seated. About a quarter of an hour after he had ascended in the lift the young man reappeared in the lounge, carrying a box which he had not had with him when he entered the lift. This fact attracted the attention of Colonel Crerer. The young man at once left the hotel.
The plaintiff returned to the hotel at about 3.30 p.m. and on going to the reception office found that her key was no longer on the keyboard. With the aid of a pass-key she entered her room and found furs, jewellery worth 50l., articles of personal clothing and a hat-box missing.
In the plaintiff's bedroom behind a door leading to the washstand was a notice containing some fifteen paragraphs the first of which read: “The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody. Valuables should be deposited for safe custody in a sealed package and a receipt obtained.”
The plaintiff by her action claimed from the defendants the value of the articles missing, alleging that they were negligent in failing to guard or supervise the keyboard and in permitting a person unknown to enter their hotel and to leave it with the plaintiff's property. She also claimed that in the contract between the plaintiff and the defendants there was an implied term that the defendants would take proper care for the safety of the plaintiff's property in her bedroom and would keep the plaintiff's bedroom key in their custody and control and adequately guard it when it was upon their keyboard; and she alleged breaches of that contract. The defendants denied negligence, the terms of any such contract as alleged, and any breach thereof. They further pleaded (1.) that they received the plaintiff as a guest into their hotel subject to the terms contained in the notice exhibited in her bedroom and that they were accordingly not responsible for the articles stolen, whether or not they were negligent; (2.) that the plaintiff was guilty of contributory negligence in depositing the key on the keyboard; and (3.) that the hotel was a common inn and they, having complied with the terms of s. 3 of the
At the trial the plaintiff called evidence the effect of which has been related, and one of her witnesses was the manageress of the hotel. There was evidence that the system for the deposit of keys had worked well for three years. The defendants did not call the receptionist or the porter referred to or any evidence. The trial judge found (1.) that the plaintiff's goods were stolen by the young man seen by Colonel Crerer, (2.) that the defendants were and (3.) the plaintiff was not guilty of negligence and (4.) that the defendants' negligence was the cause of the plaintiff's loss (5.). He held that the hotel was not an inn at common law; (6.) that the plaintiff was not a traveller but a resident at the hotel, and (7.) that though the plaintiff had notice of the contents of the first paragraph of the notice in her bedroom, the terms of that notice were ambiguous and so did not absolve the defendants from liability. Accordingly he gave judgment for the plaintiff for 329l. 2s. 0d.
The defendants appealed, and the plaintiff cross-appealed.
Montague Berryman K.C., Phineas Quass and Dingle Foot for the defendants. There was no evidence here of negligence on the part of the proprietors of the hotel or of their servants. The plaintiff was not bound to place her key on the keyboard. She had resided in the hotel from May to November, 1945, and well knew the conditions. It was evident that the receptionist might be called away from the reception office on some errand of duty or of necessity or have been engaged in telephoning. Neither could she possibly know by sight every resident of...
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