Parker v South Eastern Railway Company; Gabell v South Eastern Railway Company
| Jurisdiction | England & Wales |
| Judgment Date | 1876 |
| Date | 1876 |
| Court | Court of Appeal |
Railway Company - Bailment - Deposit of Property in Cloak-room - Ticket - Condition endorsed thereon - Knowledge of the Condition by Depositor.
On the deposit of articles at the cloak-room at a railway station, a charge is made of 2d. for each, and the depositor receives a ticket, on the face of which are printed the times of opening and closing the cloak-room and the words “See back,” and on the back there is a notice that the company will not be responsible for any package exceeding 10l. A placard upon which is printed in legible characters the same condition is also hung up in the cloak-room.
The plaintiff deposited his bag, of value exceeding 10l., in the defendants' cloak-room, paid 2d., and received a ticket. The bag was lost or stolen. In an action to recover its value the plaintiff swore that he took the ticket without reading it, imagining it to be only a receipt for the money paid for the deposit of the article, or as evidence that the company had received the article, that he did not read the condition at the back of the ticket, nor did he see the notice hung up in the cloak-room. The judge left two questions to the jury, - 1. Did the plaintiff read or was he aware of the special condition upon which the article was deposited? 2. Was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or to make himself aware of the condition? The jury answered both the questions in the negative, and judgment was directed for the plaintiff:—
Held, by Mellish and Baggallay, L.JJ., that there ought to be a new trial, on the ground that there had been a misdirection by the judge, inasmuch as the plaintiff could be under no obligation to read the condition; and that the second question left to the jury ought to have been, whether the company did that which was reasonably sufficient to give the plaintiff notice of the condition.
Held, further by Bramwell, L.J., that, on the above facts, it was a question of law, and that judgment ought to be entered for the defendants.
ACTIONS against the South Eastern Railway Company for the value of bags and their contents lost to the plaintiffs respectively by the negligence of the company's servants.
The plaintiff in each case had deposited a bag in a cloak-room at the defendants' railway station, had paid the clerk 2d., and had received a paper ticket, on one side of which were written a number and a date, and were printed notices as to when the office would be opened and closed, and the words “See back.” On the other side were printed several clauses relating to articles left by passengers, the last of which was, “The company will not be responsible for any package exceeding the value of 10l.” In each case the plaintiff on the same day presented his ticket and demanded his bag, and in each case the bag could not be found, and had not been since found. Parker claimed 24l. 10s. as the value of his bag, and Gabell claimed 50l. 16s. The company in each case pleaded that they had accepted the goods on the condition that they would not be responsible for the value if it exceeded 10l.; and on the trial they relied on the words printed on the back of the ticket, and also on the fact that a notice to the same effect was printed and hung up in the cloak-room. Each plaintiff gave evidence and denied that he had seen the notice, or read what was printed on the ticket. Each plaintiff admitted that he had often received such tickets, and knew there was printed matter on them, but said that he did not know what it was. Parker said that he imagined the ticket to be a receipt for the money paid by him; and Gabell said he supposed it was evidence of the company having received the bag, and that he knew that the number on it corresponded with a number on his goods.
Parker's case was tried at Westminster on the 27th of February, 1876, before Pollock, B.; and Gabell's case was tried at Westminster on the 15th of November, 1876, before Grove, J. The questions left in each case by the judge to the jury were: 1. Did the plaintiff read or was he aware of the special condition upon which the articles were deposited? 2. Was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or make himself aware of the condition?
The jury in each case answered both questions in the negative, and the judge thereupon directed judgment to be entered for the plaintiff for the amount claimed, reserving leave to the defendants to move to enter judgment for them.
In Parker's case the defendants moved to enter judgment, and also obtained from the Common Pleas Division an order nisi for a new trial, on the ground of misdirection. The order was discharged, and the motion was refused by the Common Pleas Division.F1
The defendants appealed.
In Gabell's case the defendants applied to the Common Pleas Division for an order nisi for a new trial on the ground of misdirection, but the Court refused to grant the order. The defendants then moved for judgment and also obtained from the Court of Appeal an order nisi for a new trial, on the ground of misdirection.
The cases were heard together.
Feb. 6, 7. Benjamin, Q.C., and Bremner, for the defendants. The plaintiffs sue on an alleged contract to keep the goods safely, but there is no contract if one party means one thing and the other party means something else; there must be a consensus ad idem.
[BRAMWELL, J.A. Not so; one of the parties may so conduct himself as to lead the other to believe that there was a contract.]
A man cannot make such a claim saying that he took the ticket, but took care not to read what was printed on it though he knew that it related to the goods deposited. The plaintiff proposes to the company that they shall do something for him, and they answer, “There are our terms.” He had often taken similar tickets, and knew that they had on them printed matter, and he knew that he must give back the ticket in order to get back his goods. If the porter had said “Read this,” the plaintiff could not recover if he asserted merely that he had not read what was printed; and where is the difference? Henderson v. StevensonF2 was not a similar case; there the passenger took the ticket in a hurry, and knew nothing about it. Besides, in that case the company were common carriers bound to take the passenger on terms fixed by law; but the company are under no obligation to keep a cloak-room, and they have an absolute right to prescribe the terms on which they will accept articles left there. They are not even warehousemen, for they will only take small articles for the convenience of passengers. It is absurd to hold that for a charge of 2d. a company ought to become liable to make good a loss of perhaps hundreds of pounds. Harris v. Great Western Ry. Co.F3 was a stronger case. A man is not compelled to read a contract in order to be bound by it. Here the plaintiff took the ticket, and that implies an assent. The ticket contains the terms of the contract, and the plaintiff cannot, by refusing to read it, force on the company a different contract: Lewis v. M'Kee.F4 The company has not acted so as to induce the plaintiff to believe that they would be liable: Cornish v. AbingtonF5; and if the porter has done so he has exceeded his authority. The verdict ought to be entered for the defendants, or if not, then a new trial should be directed.
Prentice Q.C., and D. Brynmôr Jones, for Gabell. The question is whether a man is bound by the contents of a printed paper merely put into his hands. It could not be pretended that any one would be bound by the terms printed on a turnpike ticket or a theatre ticket. The plaintiff says he thought the ticket was a voucher for the goods, as it was, and if so, why should he read it? It is not a question of law, but one of common sense, to be left to the jury. The company were clearly bailees for hire, and as such are primâ facie liable, and it is for them to shew that they are not.
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