Scottish Court of Session Decisions

This was an action by P. & P. Campbell, dyers, Perth, against the North British Railway Company for £51, 15s. 11d., being the value of certain articles sent by the pursuers to their agent at Leeds. The facts sufficiently appear from the interlocutors.

The Sheriff-Substitute ( Barclay) pronounced this interlocutor:—

“ Perth, 18 th June 1874.—Having heard parties' procurators, and made avizandum with the process, proofs, and debate, finds as matter of fact—

First, On 14th July 1873 the pursuers dispatched from Perth a certain box numbered and marked 196, and securely packed and roped, addressed to their establishment at Leeds, and containing sundry articles of dress or apparel, as set forth in the list No. 17 of process, and a portion of these contents forms the subject-matter now at issue, and the said box was entrusted to the defenders, under contract to be carried and delivered at Leeds to its address.

Second, Several of the articles contained in the said box were of the class, and the accumulated value of the contents exceeded the sum, which, under both specialties, required declaration of value to admit of insurance, under the Carriers Act, 1 William IV., c. 68. But no such declaration was made by the pursuers to the defenders, and consequently no insurance effected.

Third, The said box arrived at Leeds on 16th July, and immediately on delivery was discovered to have been opened, and on examination there was found awanting, and consequently had been abstracted and stolen therefrom, the articles enumerated in the schedule second annexed to the summons.

Fourth, The values of the articles so abstracted and stolen were paid by the pursuers to the several owners thereof, or they are liable in the same, and the amount thereof is £23, 15s. 6d., as shown by the list No. 16, and so far supported by the writings No. 8/51 of process.

Fifth, The said abstraction and theft are established to have been made and perpetrated by some of the defenders' servants in course of the transit.

Sixth, The libel contains six other counts or separate conclusions, and for which the defenders admit liability, and tendered payment by their minute, No. 4 of process.

Applying the law to these facts, finds that under the common law, and the provision contained in the 8th section of the said cited statute, the defenders, as carriers, are liable in payment to the pursuers of the value of said stolen articles.

Therefore, and in consequence of the said minute of admission of liability, decerns in terms of the conclusions of the action: Finds the defenders liable in expenses: Allows an account thereof to be lodged, and remits the same to the Auditor to tax, and decerns.”

The Sheriff ( Adam) pronounced this interlocutor:—

Edinburgh, 19 th October 1874.—Having heard parties' procurators, and made avizandum with the appeal and whole process, sustains the appeal, and recalls the interlocutor appealed from: Finds (1) that upon the 14th July 1873 the pursuers delivered to the defenders at Perth a box containing the articles specified in the list No. 17 of process, for the purpose of being carried to Leeds for hire; that this box was dispatched to Leeds on the same day, and was delivered to the pursuers at their office there on the 16th July 1873; (2) that part of the contents of the said box consisted of articles of silk, and that the value of these articles exceeded the sum of £10, but that no declaration was made by the pursuers at the time of delivery thereof to the defenders' servants of the nature or value of these articles; (3) that when the said box arrived at Leeds it was found to have been opened, and that the articles specified in the list No. 16 of process, being part of the foresaid articles of silk, and of the value of £23, 15s. 6d., had been stolen therefrom; (4) that it is not proved that the loss of the said articles arose from the felonious acts of any servant in the employment of the defenders Finds therefore in point of law that under and in virtue of the Act 11 George IV. and 1 Will. IV., c. 68, sec. 1, the defenders are not liable for the loss of the said articles, and assoilzies them from the third conclusion of the summons: Further, and in respect of the minute, No. 4 of process, decerns against the defenders in terms of the remaining conclusions of the summons, with interest from the date of citation: Finds the pursuers entitled to expenses to the 18th of December 1873 inclusive: Finds the defenders entitled to expenses subsequent to that date: Allows accounts thereof to be lodged, and remits the same to the Auditor to tax and report, and decerns.

Note.—A box sufficiently secured and corded was delivered by the pursuers to the defenders in Perth for the purpose of being carried by them to Leeds for hire.

When the box arrived at Leeds it was found to have been opened, and certain silk articles exceeding £10 in value to have been abstracted therefrom.

There is no doubt that the articles in question were feloniously abstracted from the box in which they were packed, and the only question in the case is, whether it is proved that such felony was committed by the defenders' servants. If this is not proved the defenders are, in virtue of the 1st section of the Carriers Act (11 Geo. IV. and 1 Will. IV., c. 68), not liable for the loss.

If it is proved, the defenders, in virtue of the 8th section of the Act, lose the protection which they would otherwise have under the 1st section.

There is no evidence when, where, or by whom the articles were stolen. All that is known is that the box was delivered to the defenders in Perth secured and corded, and that it had been opened and the articles abstracted in the course of its transit to Leeds. None of the stolen articles have been recovered, and there is nothing to implicate any one person rather than another.

It was maintained, however, that from the mode in which the box was secured so much time

Page: 311↓

would be required to open it, and to select the stolen articles from among its other contents, that greater facilities and opportunities of access must have been had than could have been obtained by a stranger, and that therefore it is to be inferred that the theft must have been the act of the defenders' servants. The Sheriff thinks that it is more likely than not that the theft was committed by the defenders' servants, but he does not think that there is anything in the circumstances referred to necessarily implying that the theft was committed by them, and excluding the possibility or probability of its having been committed by a discharged servant or by a stranger.

The Sheriff thinks that in point of law the onus of proving that the felony was committed by the defenders' servants lies upon the pursuers, and that this onus is not discharged by proving that the articles were delivered to the defenders but were not made forthcoming by them.

He further thinks that it is not enough for the pursuers to prove that the felony was probably committed by the defenders' servants. This might with truth be affirmed in the case of every theft of goods while in transitu on a railway, as the company's servants must have far more ample facilities and opportunities of stealing them than the general public. To hold that it was sufficient to fix liability on a railway company or other carrier to prove that the felony is more likely to have been committed by their servants than by anybody else, would practically be to deprive them of the protection which the Carriers Act was intended to give them. The Sheriff thinks that the pursuers must prove not merely that it is probable, but that in point of fact the felony was committed by one or more of the defenders' servants— Great Northern (Western) Railway Company v. Rimell, 18 C. B, 575; Metcalfe v. London, B., and South Coast Railway Company, 4 C. B. (n. s.) 387.

The Sheriff further thinks that in this case the defenders were under no obligation to call as witnesses the numerous servants through whose hands or under whose charge the box must have passed in the course of its transit. It is a different case from that where some fact or circumstance is proved which, unless explained, leads to the presumption of guilt, as for example in the cases of Boyce and Vaughton, where the recent possession by a servant of part of the stolen goods was held to be sufficient proof that he committed the felony, he not having been called to explain his possession— Chapman, 2 Bingham's M. C. 222, and Vaughton v. L. and N. Western Railway, January 28, 1874, Law Rep. Ex., vol. 9, p. 93.

But in this case, where no fact or circumstance is proved to cast suspicion on any one, or requiring to be explained, there would seem to be no reason for calling all the servants as witnesses for the purpose of giving them an opportunity of denying that they were the thieves. The Sheriff thinks that this case falls under the principle of the case of Metcalfe above referred to, and not under that of Boyce and Vaughton.

The Sheriff therefore thinks that the pursuers have failed to prove that the loss arose from the felonious acts of the defenders' servants, and that therefore the defenders are entitled to be assoilzied. But while he has come to this conclusion he thinks it a case attended with much difficulty.”

The pursuers appealed.

At advising—