Scottish Court of Session Decisions

The Innkeepers' Liability Act 1863 (26 and 27 Vict. cap. 41), sec. 1, enacts—“No innkeeper shall, after the passing of this Act, be liable to make good to any guest of such innkeeper any loss of, or injury to, goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the sum of thirty pounds, except in the following cases—that is to say—(1) Where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper or any servant in his employ. (2) Where such goods or property shall have been deposited expressly for safe custody with such innkeeper. Provided always that in the case of such deposit it shall be lawful for such innkeeper, if he thinks fit, to require, as a condition of his liability, that such goods or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same.”

In this action G. W. Whitehouse, manufacturing jeweller and diamond mounter, Birmingham, sued R. & W. Pickett, hotelkeepers, Edinburgh, for payment of the sum of £1996, 5s. 6d., being the value of a bag and its contents belonging to him, which formed part of the luggage of one of his commercial travellers, and which was lost while the traveller was a guest in the defenders' hotel. The defenders denied that they were liable, but tendered £30 in full of the conclusions of the summons.

A proof in the action was taken, and the facts proved are set forth in the opinions of the Court. The evidence given by the traveller, John Buckley, as to the disposal of the bag in question on his arrival at the hotel was as follows—“On 17th February last I arrived at the Waverley Station at a quarter to two, and went as usual to the hotel. I was carrying my own luggage—one portmanteau and my bag of valuables. I met the boots at the foot of the stairs—a man called James Sim—and he carried my two bags up. Sim has been in the hotel for six or seven years. He recognised me. He simply carried my bags up, and Mr Reginald Pickett (commonly called Harry) came forward and gave me a number. He was sitting in the inner room at dinner. I stopped in front of the window opening into the bar, and he came forward to the window and said there were two friends of mine sitting in the commercial room at dinner. He came out of the office, walked into the commercial room, and said to these gentlemen—‘Here's Mr Buckley.’ I then went into what is marked coffee-room on the plan produced—No. 50—and sat down to read the papers. Sim put my portmanteau on the top of the stair while he got my number, and he carried the other bag into the bar and put it at the back of the partition. He went into the bar by the door from the landing, close beside the service window. I saw where he deposited the bag at the time. It was at the back of the partition that is just by the desk in the office. As you look in at the service window, it is in the corner to the left at the side of an ice chest. The spot where he deposited the bag is marked by a cross in red on the plan. I had given him no special instructions as to what he was to do with my luggage, or where he was to deposit it, because he knew I had been staying there so many years that there was no need for me to explain anything. On coming out of the bar and getting my room number he took my portmanteau upstairs, and I found it there afterwards. Mr Pickett gave him no instructions in my hearing as to what he was to do with my luggage. He dealt with my luggage on that occasion in the way in which it was usual for him to do on my visits to the hotel; but, as I say, sometimes

I asked if I could go through and place it myself in the inner room. The bag had frequently been deposited in the same place upon previous visits. (Q) What was your custom, in visiting the hotel, as to dealing with looking after your bag?—(A) To put it in their charge till I went to bed, and then I went and fetched it and took it up to my bedroom with me. I always took it up to my bedroom when I went to bed. … On the occasion in question nothing was said to any person about the bag at all.” The evidence of the defenders and Sim was in agreement with Buckley's on this point.

The pursuer pleaded, inter alia—“(1) The said goods being lost to the pursuer while in the custody of the defenders as part of the luggage of the pursuer's said traveller, while he was a guest residing at the defenders' hotel, the defenders are, under the edict Nautœ, Caupones, &c., bound to compensate the pursuer for said loss as concluded for. (2) The said goods having been deposited with the defenders for safe custody as libelled, they are bound to indemnify the pursuer for the loss thereof. (3) The said goods having been stolen through the default or neglect of the defenders or their servants, the defenders are liable in reparation to the pursuer as concluded for.”

The defenders pleaded, inter alia—“(3) The bag referred to not having been deposited with the defenders expressly for safe custody, they are not responsible for its value to the pursuer. (4) The pursuer not having suffered any loss or damage through the fault or negligence of the defenders, or of those for whom they are responsible, the defenders should be asoilzied. (5) The defenders having complied with the provisions of the Act 26 and 27 Vict. cap. 41, are not liable to the pursuers in more than the sum of £30.”

On 23rd November 1906 the Lord Ordinary

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( Salvesen) decerned against the defenders for payment of the sum of £1790, 3s. 6d. with interest.

Opinion.—“The facts in this case as they have been disclosed in the proof are comparatively simple, and so far as material admit of brief statement. The pursuer's traveller, John Buckley, who has been in the same employment for sixteen or seventeen years, arrived at the Imperial Hotel belonging to the defenders on 17th February 1906, in the course of one of his regular journeys on the pursuer's business. Outside the hotel he was met by James Sim, the boots or hotel porter, who relieved him of two bags which he was carrying. One of these was a stock or sample bag, in which Mr Buckley was in the habit of carrying the jewels belonging to his employer which he sold to retail dealers. Sim knew Buckley as an old customer. He also knew his occupation and the fact that one of the bags contained valuable articles of jewellery. On reaching the first floor, accordingly, Sim carried this bag straight into the office, and deposited it in a dark corner between an ice chest and the wall. He then obtained from Mr Reginald Pickett (who is for some unexplained reason called ‘Harry’ throughout the proof) the key of Mr Buckley's bedroom, and carried the other bag, which contained the latter's personal effects, up to the bedroom. Mr Pickett accompanied Mr Buckley into the coffee-room, where there was an acquaintance of his, and left him there.

“It being Saturday afternoon Mr Buckley had no occasion to display any of the contents of his bag. It was his practice, however, when he retired to rest to carry the bag with him up to the bedroom, and accordingly he inquired for it about 11.30 the same evening. He was handed a bag which somewhat resembled his own, but which he at once discovered was not his. Sim had left for the night but was sent for, and at first thought that the bag was Mr Buckley's. The defenders, however, being satisfied that it was not, sent for the police, who on opening discovered that it contained only a wooden frame, a piece of sheet zinc, and some other articles, the contents being so arranged as to give the bag the appearance of being full.

Suspicion was at once thrown upon three persons who had been guests in the hotel, one of them who gave the name of ‘Hall’ having occupied a bedroom since the Wednesday previous. These men disappeared the same evening without having paid their bill, and leaving behind them some effects, including a skeleton key and a pair of diamond scales, which left little doubt as to the profession to which they belonged. The police bill which was issued with a view to capturing the three persons in question published a minute description of all the articles which could give a clue to the thieves; but although Mr Buckley's bag contained nearly 1600 articles of small jewellery, principally rings, many of them being marked with the initials of the pursuer, none of the property has been traced, nor have the thieves been captured.

The only other piece of evidence bearing on the theft is that about 6·30 P.M. one of the suspected individuals handed to Mr R. Pickett the brown leather bag which was left instead of Mr Buckley's, and asked him to take charge of it. Mr Pickett did so, placing it in the same recess as that, in which Mr Buckley's bag was placed. How the theft was committed remains unexplained, but as Mr Buckley's bag was not handed to any of the three men in mistake, it must have been removed by one of them without the knowledge or consent of the defenders or their servants.

The pursuer accordingly now sues the defenders for the sum of £1996, 5s. 6d., as the value of the articles of jewellery contained in the stolen bag. The pleadings disclose alternative grounds of liability; but the case mainly insisted in was that the goods having been put into the defenders' custody for safe keeping, and having been stolen through the negligence of the defenders or their servants, they are liable to compensate the pursuer for his loss. This ground of action may still be insisted in notwithstanding the Act 26 and 27 Vict. cap. 41, which limits the liability of innkeepers. It is admitted, however, that the effect of that Act was to throw the onus upon the guest, whose property had disappeared in the innkeeper's custody, to prove that it had so disappeared through the default or negligence of the innkeeper or his servants, failing which proof the liability is limited to the sum of £30. As might be expected, however, there is no direct evidence of negligence; but the pursuer says that it must be inferred from the disappearance of the goods coupled with the facts disclosed in the proof, which he says instruct both a laxity in the system adopted by the defenders in storing their customers' property, and negligence on the part of those in charge.

I have already described the place where the bag was deposited by Sim, and which is called a bar on the plan, but was also used as an office. There is a service window in this room and a door at the side of it. Opposite this door at the other end is a glass door, which gives admission to a private room used by the defenders as their own sitting-room, and this again has a door marked ‘Private’ opening into the lobby. There being at that time no strong room in the hotel (although one has since been added) the place where Buckley's bag was put was undoubtedly the safest place in the hotel for the purpose. There is usually some person either in the bar or in the private room, and it is said that when the bar is left vacant the door is generally snibbed, and ought invariably to be so. If that were done no access could be obtained to the bar except through the private room, and so long as there was any person in the private room no unauthorised person could remove any property from the bar without his observing it. I am satisfied, however, that the defenders or their servants did not always adopt the precaution of snibbing the door to the bar. It was not snibbed when Sim took Buckley's

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bag and deposited it in the recess, nor was it snibbed in the evening when Mr Buckley went in to take it up to his own bedroom. On both occasions there was no doubt some person in the private room who could more or less watch the bar, but the efficiency of this would depend upon the position that he occupied at the time. From many parts of the private room only a very small portion of the bar could be seen, and judging from the plan, if the bar door were open, a person might easily reach the recess without being observed by those in charge of the adjoining room. Similarly if the private room itself was untenanted there was nothing to prevent anyone going from the lobby through the two doors into the bar, even if there was a person in attendance there, and being unobserved if that person was occupied at the service window with his back towards the recess. The safety of a guest's property in the apartment depended therefore, when all the doors were left unfastened, entirely on the vigilance of those who were inside.

As Mr Buckley's bag was removed without any person observing it, it follows either that there was nobody in the two rooms at the time or that the person there was not attending to his duties, one of which undoubtedly was the protection of property left in the office. On this point it is not without importance that the defenders exhibited a notice in various parts of the hotel ‘that they would not be responsible for any valuables left in bedrooms, but would take charge of same in the office.’ That was an invitation to guests in the hotel to leave valuables in the office, and imposed upon the defenders a duty of taking charge of them there. The place selected by Sim, therefore, for the deposit of the pursuer's bag was the recognised place, according to the rules of the hotel, for storing such property, and it is immaterial whether on other occasions Mr Buckley had left his bag under the sideboard in the private room, which was no doubt an equally good place, provided there was somebody in attendance there.

Mr Watt, for the defenders, pressed upon me that there was no evidence of negligence at all, and that the bag might have been removed consistently with no negligence being attributable to the defenders or their servants. I do not agree. The negligence may have been slight because of the dexterity of the thieves, but I am unable to see how without negligence the theft could have been committed. Perhaps the fact that no theft had ever been committed from the hotel before may have lulled the defenders and their servants into a false confidence. Perhaps the exigencies of business (there were two dinners going on at the hotel that evening) may have temporarily absorbed the whole staff and left the private room and bar untenanted and unlocked. Whatever the reason may have been, I cannot doubt that the thief entered the apartment either by the bar door or the door of the private room, and found no obstacle to his removing the bag. The other bag had no doubt been left in the same place in order to afford the excuse, if the thief were intercepted with the bag in his hand, that he had mistaken Mr Buckley's bag for his own.

I am therefore prepared to affirm on the evidence that the bag in question was stolen, and that it could not have been stolen but for the negligence of the defenders or their servants. A defence of contributory negligence by Mr Buckley is indicated on record, but it came to nothing. After the theft had been committed Buckley remembered that he had met a man called Hall at other hotels with a bag very similar to the one which had been left, and he jumped to the conclusion that this man had in all probability been shadowing him for some time before. He had, however, at the time no suspicion of Hall, and his appearance was not such as to excite any remark.

“Parties were agreed upon the law applicable to this case, and it is shortly stated at pages 127–8 of 1 Smith's Leading Cases as deduced from Medawar, 1891, 2 Q.B. 11.

On the view which I reach that the pursuer has sufficiently established negligence on the part of the defenders, it is not necessary to consider a separate point based on the alleged failure to exhibit a notice of the provisions of the Act in a conspicuous place. If I had to decide this point my decision would be against the pursuer. I think it is proved that the notice was exhibited on the staircase leading from the entrance hall to the first floor, and at such a height that it could be read by any person who stopped on the stairs for that purpose. The place selected may not have been the best, but I think it was conspicuous enough to satisfy the statute.

The only other matter with which I have to deal is the value of the property which was stolen.” [ His Lordship proceeded to examine the evidence on this point, and came to the conclusion that the value was £1790, 3s. 6d.]

The defenders reclaimed, and argued—The defenders did not dispute the Lord Ordinary's decision on the question of the value of the bag and its contents and on the question of Buckley's contributory negligence, and they accepted as correct the statements of the facts given in the Lord Ordinary's opinion. But the Lord Ordinary was in error in the inference which he drew from these facts. In order to render the defenders liable it was necessary under the Innkeepers Act 1863 that the pursuer should prove that there was negligence on the part of the defenders or that the bag had been deposited for safe custody. (1) Under section 1 (1) of the Act the onus of proving that the goods were lost “through the wilful act, default, or neglect” of the innkeeper was on the pursuer— Medawar v. Grand Hotel Co., [1891] 2 QB 11; O'Connor v. Grand International Hotel Co., [1898] 2 Ir. Rep. 92; Moss v. Russell, 1884, 1 Times L.R. 13; Marchioness of Huntly v. Bedford Hotel Company, Limited, 56 J.P. 53. But in this case there was no proof of negligence on the part of the defenders, and, accordingly, the pursuer

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had not discharged the onus. (2) With reference to the case made on section 1 (2) of the Act, it could not be held that goods were deposited expressly for safe custody if the deposit and its purpose were not brought to the personal knowledge of the innkeeper— O'Connor v. Grand International Hotel Co. and Moss v. Russell, supra cit. Accordingly, the subsection did not apply in this case because Buckley gave no instructions as to the deposit of the bag, and it was proved that the defenders were not aware that the bag had been placed in the office.

Argued for the respondent—(1) On the question of negligence, at common law an innkeeper, unless he limited his responsibility by contract, express or implied, was regarded as insuring the goods of a guest, and in order to make him liable for the loss of goods the only facts that need be proved were that the goods were taken to the inn and that they were lost—Bell's Comm. (7th ed.), vol. i, p. 495, note 4. The only change made on the common law by the Innkeepers Act was that as regards liability beyond £30 what was a presumptio juris became a presumptio facti; and the innkeeper was enabled to escape liability by proving that he had not been in fault. The onus probandi, however, still rested on the innkeeper, and an analogy might be found in the law as to carriers—Bell's Prin. (10th ed.), secs. 164, 167, and 170; and the Lord President's opinion in Watson v. North British Railway Company, March 18, 1876, 3 R. 637. This result was in accordance with the general rule of law that the onus of proving a fact which was specially within the knowledge of one of the parties to a case was on that party—Taylor on Evidence (10th ed.), sec. 376 A; and as a guest could not know what had become of his goods after they were entrusted to the innkeeper it fell on the latter to prove that the loss had not been occasioned by his negligence. Even assuming, as the Lord Ordinary had assumed, that under sec. 1 (1) of the Innkeepers Act the onus was placed on the pursuer, that onus was discharged by evidence which showed that the defenders had been negligent. If the defenders knew that the bag had been placed in the office they were at fault either in not having a place sufficiently secure for guarding valuables or in not having on this particular occasion seen that the doors of the office were kept locked; and on the other hand, if the defenders did not know that the bag had been placed in the office Sim was negligent in failing to inform them of this, and they were liable in respect of his negligence. (2) The evidence proved that the goods had been deposited for safe custody. The office had been selected by the defenders as the safest place for the custody of valuables, and by the notice exhibited in the hotel they had stated that they would take charge of such goods in the office. Buckley was in the habit of visiting the hotel, and acting on the invitation implied in the notice was accustomed to place the bag in the office. Hence when Sim placed the bag, which as he was aware usually contained valuables, he must have known that Buckley intended to deposit it for safe custody, and these facts were sufficient to satisfy the requirements of sec. 1 (2) of the Act.