Scottish Court of Session Decisions

At advising on 23rd November 1951,—

LORD PRESIDENT (Cooper).—This case was argued to us as raising several important points of law but it is necessary to determine first what exactly has been proved. It is plainly established that about September 1947 the pursuer entered into a contract with the first defender for the execution at an estimated cost of certain work on a car belonging to the pursuer; that to enable this work to be performed the car was placed in the first defender's garage; and that it was still there with the work incomplete when the garage and its contents were destroyed by fire at the end of March 1948.

I now part company with the Lord Ordinary on two points. (1) His Lordship has held that it was a term of the contract that the work would be completed and the car redelivered by Christmas 1947. In my opinion there is no sufficient evidence to warrant this conclusion. Taking the evidence for the pursuer at its highest, all that the first defender ever undertook was "to do his best" to have the car ready by Christmas and to perform the work "when he had time." This qualified half-promise was not fulfilled; but, when the pursuer called, as he did on several occasions after Christmas, "to see if he was getting on with the car," he accepted, however unwillingly, the answer—"when I have time," and never insisted upon rescinding the contract nor took any other action consistent with the view that time was of the essence of the contract. I take the case accordingly upon the footing that the legal position is the same as if the fire had occurred on 24th December 1947, and it is therefore unnecessary to consider the shortcut to a decision in his favour which the pursuer offered by founding upon the tract of decisions culminating in Shaw & Co. v. Symmons Sons . (2) The Lord Ordinary has inferred from the facts that there was no locatio custodiœ, upon the ground that there was nothing in

the evidence to show that the garaging of the car was not free. In my opinion every contract of locatio operis faciendi which entails, as this contract did, that the subject on which the work is to be done is to be left in the premises of the tradesman and in his possession must normally be presumed to include as an inherent ingredient an element of locatio custodiœ, the charge for which, like other overhead charges, is covered by the price of the work done. The opposite view, which was not pressed, would involve that the tradesman with whom goods are left to have repairs or other work performed upon them, and who does not stipulate for, or charge, eo nomine a sum to cover the storage, would owe no duty as an onerous custodier to preserve the goods from loss or damage.

Upon this view I consider that the legal position was that, when the fire occurred, the first defender as an onerous custodier owed a duty to the pursuer to take such care of the car as a prudent man would exhibit in the circumstances.

It is necessary at this point to digress in order to dispose of a curious matter. Prior to 1809 it would appear that responsibility for fire fell under the Edict upon carriers, innkeepers and stablers. But by M'Donell v. Ettles, F. C., 15th December 1809 (better reported in 1 Bell Ill. 170) it was held after a proof that a stabler was not answerable for the destruction of certain horses through the burning of a stable. I find it very difficult to read that decision as meaning anything more than that the facts of that case were such as to exonerate the stabler in question—in other words that liability does not attach under the Edict for a fire which is shown to be an accidental fire. The decision has however been cited repeatedly as if it decided that fire is always an inevitable accident or damnum fatale, for which even under the Edict no responsibility attaches. The statements in Bell's Principles, (Guthrie's edition), section 239; Hume's Lectures, ii, 105; and in modern textbooks (Gloag and Henderson, 4th ed., p. 325: The Encyclopædia, iii, 10; viii, 193) seem to me to push the decision farther than it will bear. In his Commentaries Bell altered his statement in the 5th edition, and his revised view is expressed in terms which indicate uneasiness (7th ed., i, 499-500). The matter is put accurately in Ivory's Notes to Erskine, III, i, 28; and in the Mercantile Law (Scotland) Amendment Act of 1856, section 17, the law of Scotland and England was assimilated as regards carriers (but not as regards innkeepers or stablers) by a provision which refers expressly to "accidental" fire.

In the present case the pursuer disclaimed any case under the Edict; but if there were no liability for fire under the Edict, there could hardly be liability upon any ordinary depositary at common law. I therefore feel bound to deal with the point and to record my view as to the true effect of M'Donell v. Ettles . By "accidental" fire I mean a fire which is neither (a) the result of a deliberate act in which the depositary is actor or art and part, nor (b) the result of culpable acts or omissions by him or those for whom he is responsible, sufficient to infer an absence of the ordinary care and precaution which the prudent man would observe in the circumstances; and when defending an action of the type before us it seems to me that the primary onus is on the depositary to establish at least a prima facie case to the effect that his inability to redeliver is attributable to such an accidental fire and that, so far as he was concerned, the fire was a damnum fatale.In many cases little difficulty should arise in discharging this primary onus, and my feeling is that the first defender could have satisfactorily discharged it if he had gone about the matter in the proper way. The whole difficulty arises from the condition in which the evidence has been left. The first defender in his pleadings alleged that the fire was caused entirely by the fault of the second defender who without his knowledge brought on to the premises a car loaded with 60 gallons of petrol, the source of which we are left to surmise, and which exploded, either as a result of a backfire or through the use of a naked light in the search for a leak. By common consent the case against the second defender failed, and he has disappeared from the process. The fire is left unexplained. I do not suggest that it was incumbent upon the first defender to prove positively how and why the fire broke out, but the question is whether he has proved enough to negative even prima facie his responsibility for the outbreak. That—the real issue in the case—was almost completely lost sight of at the proof. Even the first defender tells us next to nothing about the outbreak, except that he was in his home at the time. No evidence from the police or the fire brigade was adduced, other witnesses being visibly hostile and unwilling to speak. I am regretfully forced to the conclusion that the first defender has failed to discharge the primary onus upon him. My regret is due to the fact that the case reeks with suspicion against others than the first defender. But as the proof stands I can find no escape from holding him liable.

As regards the damages it is obvious that the value of the car, even in these days, was very small, and I consider that the pursuer will be amply indemnified by an award of £100. I propose that we recall the interlocutor reclaimed against, sustain the second plea in law for the pursuer, and grant decree for £100 in name of damages.

LORD RUSSELL. —Agreeing with the Lord Ordinary, I am of opinion that the pursuer has proved that about September 1947 a contract was entered into between himself and the first defender whereby the latter undertook to respray the body and renew the window glass of the pursuer's Austin car. The price to be paid was from £20 to £30 for the respraying, and £6 for the windows. It was agreed that the first defender would personally carry out the work on the car in his garage or adjoining yard, and the custody of the car was, as it had to be, entrusted to him for that purpose. The contract so concluded was a locatio operis faciendi. While in general such a contract may or may not include, as an incidental element, a contract of locatio custodiœ, I have come to be of opinion, differing from the Lord Ordinary's view, that this contract did embody a locatio custodiœ. It appears to me that the surrounding circumstances, viewed in the light of the oral evidence, necessarily yield the inference that the cost price of the work to be done included as an ingredient a charge for the first defender's custody and care of the car during the period in which the car was housed in his premises for the execution of the work. I am therefore of opinion that the legal obligation of the first defender in respect of the care and custody of the car was that incumbent on an onerous depositary. That obligation is for safe keeping—under such reasonable care as a man of common prudence generally exercises about his own property of like description. No question arises in relation to liability under the Edict, which, as the parties are agreed, is not applicable to the circumstances of the present case.

It is admitted that before the work was completed the car, while still housed in the first defender's garage in his custody, was totally destroyed on 27th March 1948 by an outbreak of fire which originated inside the garage and destroyed the building and its contents. In answer to the pursuer's claim for the value of the destroyed car the first defender averred and pleaded (first) that the outbreak of fire in the garage was not occasioned through any failure in the duties incumbent on him as the car's custodian; and as a separate and alternative plea (second) that the fire was due to the back-firing of a car or to a petrol explosion caused by the second defender in carelessly using, inside the garage, a naked light to detect a leak in a large petrolfilled drum brought by him into the garage. No attempt was made by the first defender to substantiate by evidence the second of those pleas so as to bring home responsibility or fault to the second defender as the person who caused the fire; and that alleged explanation of the fire fails for lack of proof. As regards his first plea the first defender maintained that an outbreak of fire is invariably regarded as a damnum fatale which elides liability on a stabler under the Edict and a fortiori on a custodier at common law. This argument and the case of M'Donell v. Ettles on which it was based have been examined and commented upon by your Lordship in the chair in terms with which I fully agree, and to which I need not add. I am satisfied that the onus lay on the first defender to set up at least a prima facie case of an accidental outbreak of fire such as would be sufficient to negative his responsibility therefor. But his own oral testimony was in effect:—I do not know how the fire originated"; and no further evidence thereanent was adduced. I have no doubt that it lay upon him, and it ought to have been possible for him, to furnish some additional information relevant to negative his responsibility for the fire—see Wilson v. Orr; M'Lean v. Warnock; and Mustard v. Paterson, per Lord Justice-Clerk Alness at p. 149. Although the case is a narrow one, I am of opinion that the result of his failure to do so is that he has not discharged the onus resting on him and is liable to make good the pursuer's loss.

Although that is enough for the pursuer's success quoad the liability of the first defender, it is right that I should deal briefly with an alternative argument presented for the pursuer. It was maintained that the contract with the first defender included a term that the work was to be completed by Christmas 1947; that the failure to complete the work timeously was a breach of a material condition of the contract; and that, as the first defender's said failure (constituting a wrongful act) was in operation when the car was destroyed, he was liable to make good the loss in conformity with the principle illustrated in the case of Shaw & Co. v. Symmons & Sons . In my opinion the evidence does not warrant the view that the time condition referred to was a term of the contract; and I disagree with the Lord Ordinary's view that it was. Moreover, even if the first defender's duty—in the absence of a stipulated time for completion—was to complete the work within a reasonable time, I am satisfied on the evidence that the pursuer waived his right to demand completion within any time limit, and acquiesced in the continuing delay in the execution of the work. Finally, on the assumption that the legal principle founded on by the pursuer is to be taken as established by the law of England, I desire to reserve my opinion on the question whether it is so in Scotland.

I agree that the award suggested by your Lordship in the chair is reasonable in the circumstances and that the reclaiming motion should be disposed of in the manner suggested by your Lordship.

LORD KEITH .—This case raises some difficult questions, but, as I agree generally with the approach made to it and the result reached by your Lordship, I can express my views fairly shortly.

There is, I agree, necessarily an element of deposit in the contract made between the pursuer and the first defender, and deposit for onerous consideration. Bell in his Principles does not seem to regard this as coming within pure contract of deposit but as being locatio operis (Bell's Principles, section 210). But the obligations of the depositary are no less in the latter than in the former (section 155).

Now if I leave my property in somebody's custody in order that he may perform some work on it, it is obviously no excuse for failure to return it that the depositary cannot find it or has lost it. It is clear that, in such case, he must compensate me for the loss. Copland v. Brogan is a good illustration of the application of this principle, which also, I think, furnishes the ratio of the decisions in Wilson v. Orr and M'Lean v. Warnock . The case of Sutherland v. Hutton, which may seem to conflict with these decisions, was, I think, a very special case in which the terms of the bargain, or the practice of the locality, put the burden of proving fault upon the pursuer. But the depositary may have an explanation of the loss which may relieve him from liability. He may say, for instance, that his premises were broken into and the contents, or some of them, including my property, stolen, or that his premises were destroyed by fire along with the contents. This latter is just the explanation that the first-named defender gives here, and the crux of the case seems to me to be whether it is enough for him to prove that there was a fire, or whether he must go further and prove something more—how much more may depend on the circumstances of the case—before he can excuse himself of liability, or at least shift the burden of proving want of due care on to the pursuer.

In this case it is proved that there was a fire which destroyed the pursuer's car, or at least damaged it so extensively as to render it useless. There is authority in the works of various writers, including Bell's Principles, section 239, that fire is an inevitable accident. This clearly is not a proposition in law. Fire may be caused intentionally or by negligence. The statement at its highest can only be taken to mean that fire, if not proved to be intentional or due to negligence, must be deemed accidental. But, even as so stated, the proposition, in my opinion, is not supported by the decision of M'Donell v. Ettles, the authority on which it is supposed to rest. That was the case of a fire in a stable attached to an inn, in which evidence was led as to the circumstances and probable origin of the fire. I read the decision as holding that, on a review of the evidence, the fire, so far as the innkeeper was concerned, was an accidental fire for which he was in no way responsible, and that (and this was the real importance of the decision) an accidental fire was a damnum fatale relieving the innkeeper from liability under the exception in the Edict Nautœ, Caupones, Stabularii. The effect of the decision is correctly expressed in Bell's Illustrations, i, 170, and in the notes to Erskine's Institute to which your Lordship has referred. I find it difficult to understand how the case ever came to be cited for the proposition that fire in Scotland is an inevitable accident. The only proposition in law for which M'Donell v. Ettles should be cited as authority is that accidental fire is a damnum fatale for the purposes of the exceptions to the Edict—a chapter of law which Lord Hunter reviews in the case of Mustard v. Paterson, at p. 153. It should be noted, however, that in section 239 Bell is really dealing with fire as an exception to the Edict, and, as is observed in the notes to section 237, he seems to use the term "inevitable accident" as equivalent to "act of God." This may have led to some confusion in the language used by him in section 239. If, of course, fire were presumed to be inevitable accident, all that the first-named defender would have to do to escape all liability would be to prove the fire, unless negligence or worse were proved against him.

I am not prepared, however, to hold that mere proof of fire here is sufficient to throw on the pursuer the burden of proving negligence. The defender must, I think, go further. He must prove at least the circumstances in which the fire took place and the steps taken on its discovery, so that the Court may have a background to enable it to decide what may be difficult questions of shifting onus. In a matter such as a fire it may be that very little is required of a custodier to show that the fire was not due to his fault or at least to shift the onus to the owner of the goods to show that it was. But each case would, I think, have to be considered on its own circumstances, and I do not find it necessary in this case to express any further opinion on the degree of onus.

The peculiarity of this case is that the first-named defender has left the whole circumstances of the fire almost completely in the dark. On record he gives two conflicting accounts of the cause of the fire, each implicating the second-named defender. He entirely failed to prove either of these accounts, or even to come within a measurable approach to their proof. The fire took place about midnight on Saturday-Sunday, 27th-28th March 1948. The first-named defender was at the locus about 2A.M. on the Sunday but says he was too busy with the police to examine the site of the fire. He did not return to the locus till Monday. No member of the police or of the fire brigade gave evidence about the fire or as to possible causes. Indeed we know practically nothing about the fire, except that it took place. In these very special circumstances, I think the first-named defender has entirely failed to lay any foundation for the view that the fire was an accidental fire or one for which he was in no way responsible. There is nothing to cause the onus even to begin to shift to the pursuer, What the position might have been in other circumstances it is unnecessary to consider. The first-named defender, in my opinion, is liable as custodier for the loss that has fallen on the pursuer.

I agree with the estimate of that loss made by your Lordship.