[IN THE COURT OF APPEAL.] CHESHIRE v. BAILEY Dailment Master and Servant-Liability of Bailee-Theft by Servant- The plaintiff, a wholesale silversmith, hired from the defendant, a jobmaster, a brougham, horse, and coachman for the purpose of driving the plaintiff's traveller about London with samples of the plaintiff's wares to be shewn to customers. It was known to the defendant that, in the course of business, occasions would arise when the traveller would have to leave the brougham with samples in it in charge of the coachman. On one of such occasions the coachman, in pursuance of an arrangement made with confederates, drove the brougham to a place where a great portion of the samples in it was stolen by them. In an action brought by the plaintiff against the defendant to recover the value of the goods so stolen : Held, that the defendant was not responsible in respect of the criminal act of his servant, the same not having been done within the scope of his employment. Abraham v. Bullock, (1902) 86 L. T. 796, distinguished. APPEAL against the judgment of Walton J. in an action tried by him without a jury. The action was brought to recover damages for the loss of goods belonging to the plaintiff through the failure of the defendant's servant to take due care of them. A traveller in the employ of the plaintiff, who was a wholesale silversmith carrying on business at Birmingham, arranged on behalf of the plaintiff with the defendant, a jobmaster in London, for the supply by the latter of a brougham of the kind known as a "commercial brougham," a horse, and a coachman, at the rate of 31. 5s. per week of five days, for the purpose of driving the traveller about London with samples of the plaintiff's wares to be shewn to customers. The traveller mentioned at the time when the arrangement for the hire of the brougham was made that a trustworthy coachman would. be required. The coachman whom the defendant supplied had received a good character when hired by the defendant, and his conduct had been satisfactory while in the defendant's service. VOL. I. 1905. S 2 C. A. 1904 Dec. 5, 15. C. A. 1901 CHESHIRE v. BAILEY. It did not appear that the defendant knew what the nature of the plaintiff's business was, but he knew that samples of some value would be carried in the brougham, and also that, for the purposes of visiting customers and of obtaining refreshment, the traveller would often have to leave the brougham with samples in it in charge of the coachman. On one occasion, when the traveller was absent at lunch, the coachman, in pursuance of an arrangement previously made with confederates, drove the brougham to a place where a great portion of the samples in it was stolen by them. Walton J. found in effect that, though the exact character of the samples to be carried in the brougham was not known to the defendant, they were such as he might reasonably be held to have contemplated when he entered into the contract for the supply of the brougham; and, upon the authority of Abraham v. Bullock (1), he held that the defendant had undertaken that he would by himself, or his servant, take due care of the articles in the brougham during the absence of the traveller. He therefore held that the defendant was liable, and gave judgment for the plaintiff for 8007. damages. Dec. 5. English Harrison, K.C., and Clavell Salter, K.C. (G. Thorn Drury with them), for the defendant. It may be that the master in such a case as this impliedly undertakes that his servant shall not be negligent in taking care of the goods, which is all that was decided in Abraham v. Bullock (1); but he does not guarantee the honesty of his servant. The loss of the goods did not occur through the negligence of the servant in not taking due care of them, but through his independent felonious act in stealing them-an act which was outside the scope of his employment. The authorities shew that a bailee for reward is not, generally speaking, liable for the felonious act of his servant not done within the scope of his employment, unless his negligence has conduced to that act or rendered it possible. The plaintiff is really seeking to impose on the defendant the special liability of a common carrier. It would be a great hardship on the master, if he were liable in a case (1) 86 L. T. 796. like this. The goods stolen in this case were not like ordinary samples, e.g., samples of some fabric which are not of great value: they were articles of great value in proportion to their bulk, and as such would offer great temptation and opportunities to a thief; and there is no evidence that the defendant had any notice of their character. If he had been informed of it, he would probably not have undertaken any responsibility for them, merely for the small sum paid for the day's hire of the brougham. The servant's negligence is the master's negligence as long as he represents the master, but he does not represent the master in stealing the goods. [They cited Finucane v. Small (1); Jobson v. Palmer (2); Raw v. Cutten (3); Clarke v. Earnshaw (4); Giblin v. McMullen (5); Speight v. Gaunt (6); Daniels v. Harris (7); Coupé Co. v. Maddick (8); British Mutual Banking Co. v. Charnwood Forest Ry. Co. (9)] C. A. Russell, K.C., and Sims Williams, for the plaintiff. Assuming the contract to be as found by the learned judge, namely, that the master would, through his servant, exercise due care of the articles left in the brougham while the traveller was necessarily absent in the course of his business, it is submitted that it cannot be said that the contract was performed, and there is none the less a breach of the contract because the non-performance of it was under such circumstances as to amount to a crime. The case, therefore, does not come within the authorities with regard to ordinary bailments. In one sense, no doubt, namely, as regards its positive aspect, it cannot be said that the act of stealing the goods was the act of the master; but, in its negative aspect, as involving a failure to perform the contract to take due care of the goods, it may be said to have been within the scope of the servant's employment, and so to amount to a breach of the contract by the master. The case, therefore, comes within the authority of (1) (1795) 1 Esp. 315. (2) [1893] 1 Ch. 71. (3) (1832) 9 Bing. 96; 35 R. R. 518. (4) (1818) Gow, N. P. 30; 21 R. R. 790. (5) (1868) L. R. 2 P. C. 317. (6) (1883) 22 Ch. D. 727; 9 (7) (1874) L. R. 10 C. P. 1. C. A. 1904 CHESHIRE v. BAILEY. C. A. 1904 CHESHIRE V. BAILEY. Abraham v. Bullock. (1) The cases which decide that, apart from any contract, a master is not responsible for the felonious act of his servant outside the scope of his employment do not touch the present case. The judge finds that the samples stolen were such as might, as a matter of business, reasonably be held to have been contemplated by the defendant in making the contract. [They cited Osborn v. Gillett (2); Dyer v. Munday (3); Ellis v. Turner (4); Hamlyn v. Houston & Co. (5); Citizens' Life Insurance Co. v. Brown (6); Liver Alkali Co. v. Johnson (7); Kettle v. Bromsall. (8)] English Harrison, K.C., in reply. The crime of the servant in this case broke the connection of service between himself and his master: Sanderson v. Collins. (9) Cur. adv. vult. Dec. 15. COLLINS M.R. read the following judgment :—This is an appeal by the defendant from the decision of Walton J. in favour of the plaintiff. The short facts are that the defendant, a jobmaster, let to the traveller of the plaintiff, a silversmith, what is known in the trade as a "commercial brougham." The defendant, though he did not know the plaintiff's trade, had notice of the purposes for which the brougham was required, namely, that the plaintiff's traveller might be driven. about in it by a coachman supplied by the defendant for the purpose of seeking orders and shewing samples. He knew that this would involve carrying samples of some value in the brougham, and that the traveller would have to get out frequently for the purpose of visiting his customers or having refreshment. He agreed accordingly to supply a brougham specially fitted for the purpose, together with a horse and driver. The inferences of fact drawn by Walton J. are not disputed by the appellant. The brougham had been used at intervals extending over several months by one Gray, the (1) 86 L. T. 796. (2) (1873) L. R. 8 Ex. 88. (3) [1895] 1 Q. B. 742. (4) (1800) 8 T. R. 531; 5 R. R. 441. (5) [1903] 1 K. B. 81. (6) [1904] A. C. 423. (7) (1874) L. R. 9 Ex. 338. (8) (1738) Willes, 118. (9) [1904] 1 K. B. 628. plaintiff's traveller, for the purposes described. On one occasion, when he had with him plate and other articles to the value of about 1000l., the driver, acting in concert with other persons, who as well as the driver were afterwards convicted at the Old Bailey, stole the greater part of the contents of the brougham during the traveller's absence at lunch. Thereupon the plaintiff brought this action claiming to recover from the defendant the value of the stolen goods. Walton J. being, as he conceived, bound by the decision of this Court in the recent case of Abraham v. Bullock (1), gave judgment for the plaintiff for 8001. Putting that case aside for a moment, I desire to consider whether on principle the decision of the learned judge can be supported. I have come to the conclusion that it cannot. There was no special contract in this case altering the ordinary rights of the parties as implied by law upon a bailment of this class. Technically it seems to come under the class described as locatio operis faciendi. The defendant, though not a common carrier, has come under the ordinary obligations of a person who undertakes for consideration to do the work of carrying the plaintiff's traveller and his goods to such destination as he shall direct. He is bound, therefore, to bring reasonable care to the execution of every part of the duty accepted. He may perform that duty by servants or personally, and, if he employs servants, he is as much responsible for all acts done by them within the scope of their employment as he is for his own. But he is not an insurer, and is not answerable for acts done by his servants outside the scope of their employment. Hence he is not responsible for the consequences of the crime committed by the driver in this case, which was clearly outside the scope of his employment, unless it can be shewn that the happening of the crime was due to the defendant's negligence. It is a crime committed by a person who in committing it severed his connection with his master, and became a stranger; and, as the circumstances under which it was committed are known, it raises no presumption of negligence in the defendant. He took reasonable care to perform his duty in that he sent (1) 86 L. T. 796. C. A. 1904 CHESHIRE v. BAILEY. Collins M.R. |