Morris v. C.W.Martin and Sons Ltd.

Morris v. C.W.Martin & Sons Ltd.

[1966] 1 QB 716

(sub-bailment, theft or negligence of the staff)

FACTS:

The plaintiff took her mink stole to a furrior for cleaning. Sine he did not do cleaning, he subcontracted the fur to defendant on the current trade condition which provided that goods belonging to customers on the defendant premises were held at customer’s risk and defendant was liable only for his negligence during the processing. M, an employee of the D, entrusted with the task, stole the fur.

ISSUE: Whether or not D vicariously liable for the tortuous and criminal act (conversion) of M?

HELD:

COUNTY COURT

1.            D’s liability if any must be in tort.

2.            M’s act was outside the course of employment.

3.            Cheshire V Bailey (employer, not liable vicariously, if act for the benefit of servant) is good law and applicable here.

4.            D, not negligent in employing M.

COURT OF APPEAL

Issues

1.            Whether or not M’s act in the course of employment?

2.            Whether or not master, with no fault of his own, liable for theft or dishonesty of servant?

3.            Can P sue D directly for the misappropriation?

4.            Can D rely on exempting condition of trade practice?

LORD DENNING

1. Criticized Cheshire v. Bailey and said that if the master is under a duty to take care of the goods and protect it from theft and depredation, he can’t get rid of his responsibility by delegating his duty to another, regardless of servant’s dishonesty, negligence or fraud.

2. D as sub-bailee for reward was under a duty of care and P as head-bailor could sue for breach of this duty.

3. The exemption of the trade condition was not applicable as the “customer” was actually the furrier not P and the fur was not “goods belonging to” furrier”.

DIPLOCK LJ

As per Lloyd v Grace, Smith & Co (issue of benefit, immaterial) D cannot escape liability for the conversion of the plaintiff’s fur by their servant Morrisseyas the said act was within the scope of employment.

SALMON LJ

A bailee for reward is not answerable for a theft by any of his servants but only for a theft by such of them as are deputed by him to discharge some part of his duty of taking reasonable care…..