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1876 May 1.

PARKER v. THE SOUTH EASTERN RAILWAY COMPANY. Railway Company-Bailment─Deposit of Property in Cloak-room-Ticket— Condition indorsed thereon-" See Back."

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 is 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 the value of 107." A placard, upon which is printed in legible characters the same condition, is also hung up in a conspicuous place in the cloak-room.

The plaintiff deposited his bag (of the value of 247. 12s.) 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, on receiving the ticket, he placed it in his pocket without reading it, imagining it to be only a receipt for the money paid for the deposit of the article; that he did not see 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 questions in the negative, and a verdict was entered for the plaintiff :

Held, that, upon these facts and findings, the company were responsible for the loss of the bag.

Mere notice, not brought home to and assented to by the depositor, is not enough in such a case to relieve the company from liability.

Henderson v. Stevenson (Law Rep. 2 H. L., Sc. 470) commented upon.

ACTION against the South Eastern Railway Company for the value of a bag and its contents lost to the plaintiff through the negligence of the company's servants.

The cause was tried before Pollock, B., at Westminster on the 27th of February last. The facts were as follows:-The plaintiff was a passenger by the defendants' railway. On arriving at Charing Cross station he deposited his portmanteau and travellingbag in the cloak-room of the defendants, paid 4d., and received from the attendant a ticket on the face of which was the following:

South Eastern Railway.

2 articles.

Charing Cross Station.

The public are informed that the office for the receipt and delivery of left luggage will be open on week days at 9 a.m., and closed at 11 p.m., and on Sundays from 7 a.m. to 11 a.m., and from 12.30 to 10 p.m.

After the expiration of seven days, property of this kind not taken away by the owner must be sent to the unclaimed property office.

3386. L.B. 5th April, 1875.

[See Back.]

At the back of the ticket was a notice, as follows:

This company will not be responsible for articles left by passengers at the station unless the same be duly registered, for which a charge of 2d. per article will be made, and a ticket given in exchange; and no article will be given up without the production of the ticket, or satisfactory evidence of the ownership being adduced. A charge of 1d. per diem in addition will be made on all articles left in the cloak-room for a longer period than twenty-four hours. The company will not be responsible for any package exceeding the value of 107.

The plaintiff on his return to the station a few hours after he had so deposited them, presented the ticket and demanded the portmanteau and bag. He received the former, but the latter (which with the contents was of the admitted value of 247. 10s.) could not be and never was found.

The answer relied on by the company was the condition printed at the back of the ticket, and also the fact that a notice to the same effect was printed in legible characters on a placard which was publicly exhibited in a conspicuous part of the cloak-room. The plaintiff denied having seen either; saying that, on receiving the ticket, he placed it in his pocket without reading it, as he imagined it to be only a receipt for the money paid for the deposit of the articles. He admitted, however, that he had received such tickets before.

The learned judge, having had his attention called to Henderson v. Stevenson (1), left two questions to the jury,-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 cir cumstances, under any obligation, in the exercise of reasonable and proper caution, to read or to make himself aware of the condition? (2)

The jury answered both these questions in the negative, and the learned Baron 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.

(1) Law Rep. 2 H. L., Sc. 470.

(2) See Symonds v. Pain, 6 H. & N. 709; 30 L. J. (Ex.) 256.

1876

PARKER

V.

SOUTH EASTERN RAILWAY CO.

1876

PARKER

v.

SOUTH

RAILWAY CO.

Feb. 1. Willis moved to set aside the judgment entered for the plaintiff, and enter judgment for the defendants, "on the ground that, upon the facts admitted at the trial, and notwithstanding the EASTERN findings of the jury, the judge ought to have entered judgment for the defendants," or for a new trial, " on the ground of misdirection in telling the jury that they should find a verdict for the plaintiff if they thought that, considering the plaintiff's knowledge of the world and of life, and the nature and character of the transaction, he had used proper caution in not having read the document given to him at the time of the deposit." [He cited Van Toll v. South Eastern Ry. Co. (1), Lewis v. M'Kee (2), and Stewart v. London and North Western Ry. Co. (3)]

Prentice, Q.C., and F. Pollock, shewed cause. The ticket in itself cannot amount to a contract: there must be an assent by both parties to constitute a valid contract; and here it must be taken that the plaintiff never had his attention called to the words printed on the back of the ticket, and that he never read them. Henderson v. Stevenson (4) is precisely in point. There, a ticket having on its face only the words "Dublin and Whitehaven" was given to a passenger, who, without looking at it, paid for it and went on board. In an action by the passenger against the steampacket company for the loss of his luggage, it was held to be no defence on the part of the company that on the back of the ticket there was an intimation that they were not to be liable for losses of any kind or from any cause. The language of Cairns, L.C., and of all the learned lords who delivered judgments in that case is conclusive in favour of the plaintiff here.

[LORD COLERIDGE, C.J. There was no reference on the face of the ticket there to the conditions printed on the back of it. It must be matter of evidence in each case.]

In Van Toll v. South Eastern Ry. Co. (1), the Court were to draw such inferences from the facts as a jury might have done, and the inference they drew was that the plaintiff knew of the special terms on which the bag was deposited, and assented to be bound by them. The same remark applies to Stewart v. North

(1) 12 C. B. (N.S.) 75; 31 L. J. (C.P.) 241.

(2) Law Rep. 4 Ex. 58, 60.

(3) 3 H. & C. 135; 33 L. J. (Ex.),

199.

(4) Law Rep. 2 H. L., Sc. 470.

Western Ry. Co. (1); and Zunz v. South Eastern Ry. Co. (2) is disposed of by the observations of Lord Chelmsford in Henderson v. Stevenson. (3)

[LORD COLERIDGE, C.J. Pollock, C.B., puts it thus in Stewart v. North Western Ry. Co. (4): "As to the finding of the jury that the plaintiff was not aware of the contents of the time-bills, the rule applies, that a person must be presumed to know what he has the means of knowing, whether he avails himself of those means or not." If that is to be taken to be a proposition of law, it is distinctly overruled by the judgment in the House of Lords. It may be that it is a matter which may be fairly pressed before a jury.]

66

Willis and Bremner, in support of the order. Henderson v. Stevenson (5) does not decide this case. It may well be that that which is at the back of the document and is not seen is not part of the contract. But it is otherwise where there is on the face of the document given to the party a distinct reference to conditions printed on the back of it. In Van Toll v. South Eastern Ry. Co. (6) the facts were as nearly as possible the same as the facts here, and the form of the ticket was the same. Byles, J., says (7): Suppose, instead of a notice limiting the liability of the bailees, this had been a notice to quit, or a notice of the dishonour of a bill, or a notice of objection to a vote for a county or borough, it would be a strong thing to say that a man might put such a notice into his pocket, and say he never read it." "Where a notice of this kind is given, it seems to me there may be two sorts of assents. One is, where the terms are read by the bailor, and then he puts the document into his pocket, and so assents to it expressly. But if, without reading it, he chooses to put it into his pocket, though he does not know one word it contains, it seems to me that he assents to it implicitly, whatever the terms may be, on two conditions. One of those conditions is, that the terms contained in the notice should be reasonable."

[LORD COLERIDGE, C.J. Nobody seems to have asked the (Ex.) 199.

(1) 3 H. & C. 135; 33 L. J. (Ex.) 199.

(2) Law Rep. 4 Q. B. 539.
(3) Law Rep. 2 H. L., Sc. 470, 477.
(4) 3 H. & C. 135, 138; 33 L. J.

(5) Law Rep. 2 H. L., Sc. 470.
(6) 12 C. B. (N.S.) 75; 31 L. J.
(C.P.) 241.

(7) 12 C. B. (N.S.) at p. 87.

1876

PARKER

v.

SOUTH

EASTERN RAILWAY CO.

1876

PARKER

V.

SOUTH EASTERN RAILWAY CO.

plaintiff whether she had read the notice or not. The Lord Chief Justice, however, seems to have assumed that she had.]

The cases of York, Newcastle, and Berwick Ry. Co. v. Crisp (1) and Van Toll v. South Eastern Ry. Co. (2) were cited in Lewis v. McKee (3), and Willes, J., delivering the judgment of the Exchequer Chamber, expressly says that the Court threw no doubt on the principles acted upon in those cases,-observing that, "in those cases, as part of the contract, and as expressing or intended to express the terms on which the parties were dealing, a written document was handed from the one to the other under circumstances in which, without negligence, the person receiving it could not be unaware of what the person delivering it meant to bind himself to." The true question for the jury, after the first, was, whether the plaintiff knew or had the means of knowing that the company were receiving the bag upon some special printed terms. If they found that affirmatively, they should have been directed to find for the defendants, on the ground that the plaintiff had assented to those terms without reading them, or that there was mutual error, and that the plaintiff's claim as a simple bailor was not made out.

[LORD COLERIDGE, C.J. The plaintiff did not know that the terms upon which the company received his property were those printed on the back of the ticket. The jury have so found, and also that he was not negligent in not knowing it.]

They should have been asked whether he knew that there were special terms. [Kerr v. Willan (4) and Rowley v. Horne (5) were also cited. (6)].

LORD COLERIDGE, C.J. In this case the plaintiff sues the South Eastern Railway Company for damages for the loss of a portion of his luggage, he having been a passenger by their railway. The article in question (a travelling-bag) had been delivered to the company at the cloak-room of their station at Charing Cross, and (1) 14 C. B. 527; 23 L. J. (C.P.) 125.

(2) 12 C. B. (N.S.) 75; 31 L. J. (C.P.) 241.

(3) Law Rep. 4 Ex. 58, 61.

(4) 6 M. & S. 150.

(5) 3 Bing. 2.

(6) At the close of his argument, Willis stated that a similar question was pending in the Queen's Bench Division, and that time had been taken for consideration. Harris v. Great Western Ry. Co., 1 Q. B. D. 515.

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