Cumming v Hotel (C.A. 28/1934.) [1935] EACA 25 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Tanganyika), LAW, C. J. (Zanzibar), and WEBB, J. (Kenva).

> ANTHONY EDWARD CUMMING, Appellant, (Original Plaintiff-Appellant)

> > 11.

QUEEN'S HOTEL, Respondent, (Original Defendant-Respondent). C. A. $28/1934$ .

Innkeeper—duty towards property of guests—negligence of guest may exonerate innkeeper-contributory negligence.

Plaintiff sued the Queen's Hotel, Nairobi, in the Resident Magistrate's Court, for Sh. 415/50 damages in respect of two sums of money, Sh. 260 and Sh. 165/50, which he alleged had been taken from his room while he was a guest at the Hotel. The first sum had been left in a drawer under some socks and the second in a suit which plaintiff had taken off in the evening. The defendants alleged that the losses were attributable to the plaintiff's own negligence. The Magistrate found that the guest had not exercised that degree of care which a prudent man might reasonably be expected to have exercised and dismissed the suit. Plaintiff then appealed to the Supreme Court and his appeal was dismissed for similar reasons. The plaintiff appealed (by leave) to the Court of Appeal.

$Held$ (15-2-35).—That in each case the loss had been occasioned by the appellant's own negligence. "Negligence" in this connection does not mean the breach of a duty owed by a guest to the innkeeper, but is equivalent to "carelessness" or "imprudence".

Appellant in person.

There is in law no obligation on an individual to guard his own property. An innkeeper is an insurer and undertakes to indemnify the guest who is under no duty in respect of his own goods. The guest must not make it difficult for the innkeeper by showing his money, or by making an ostentatious display of wealth. The thief opened the door with a key obtained from the hotel office to which the hotel servants have access. Leaving money in an unlocked drawer is not a negligent act. Carpenter v. Haymarket Hotel, Ltd. (1931, 1 K. B. 364 at 371) is on all fours. The Resident Magistrate misconstrued Jones v. Jackson (29 L. T. 399). There is no evidence of negligence against me.

Shapley (Finch with him) for the Respondents.

The Magistrate was justified in the conclusion he arrived at. He referred to Carpenter $v$ . Haymarket Hotel (supra). Delay in reporting a theft jeopardises tracing of property. Appellant left hotel on 29th September to go to hospital and returned to hotel on 6th October. Cashill v. Wright (119 E. R. 1096) Halsbury Vol. 17, p. 320. Jones v. Jackson (29 L. T. 399). There is no evidence as to when the loss took place. Medawar v. Grand Hotel (1891, 2 Q. B. D. 11 at 21). Plaintiff was guilty of negligence and thus contributed to the loss. There was an absence of prudence which brings case within Cashill v. Wright (supra).

ABRAHAMS, C. J.—This is an appeal from the Judgment of Mr. Justice Horne dismissing an appeal from Mr. C. A. G. Lane, the Resident Magistrate, Nairobi.

The appellant, who is described in his pleading as a retired Indian Civil Servant and is 79 years of age, was travelling in this part of the world, and during his stay in Nairobi, was robbed twice of sums of money while a guest at the Queen's Hotel. He sued the Hotel in respect of his losses and the Magistrate dismissed his action.

The facts are these: On or about the 27th September last, Mr. Cumming placed a sum of money in currency notes in an unlocked drawer-in-the-dressing-table or chest of drawers-in-his----bedroom at the Hotel. He said that he concealed these notes. which amountd to Sh. 500 or Sh. 600-he is not sure-under some socks in the drawer. On the 29th September he was so ill as to be removed to a Nursing Home where he remained for some days. When he left the room the Hotel management tidied up and the door was then locked. The key of the door was taken charge of by the manageress. Mr. Cumming never mentioned to any member of the hotel staff that he had left any money behind in the bedroom.

On the 2nd of October Mr. Cumming sent a sister from the Nursing Home to the Hotel to get his money from the drawer, -telling her there was about £25 to fetch. All the notes that were in the drawer were brought to Mr. Cumming and he complained that Sh. 260 had been removed. He returned to the Hotel but appears to have made no formal complaint to the Hotel management about his loss.

On the 17th October he was robbed of another sum of Sh. $165/50$ . He says that he changed his suit at dinner time and left money in the suit which he had taken off, and in the morning on examining his pockets the money had disappeared.

Both Counsel for the Respondents and the Appellant, who conducted his case in person, have urged the serious consequences which will follow on the one hand to hotel keepers and on the other to guests if the decision goes one way or the other, and a certain number of hotel cases have been cited to us by both sides.

The principle, however, which determines hotel keepers liability in respect of loss of a guest's property, is set out in the plainest language possible in Cashill v. Wright (6 E. & B. 894) where ERLE, J. says: "The goods remain under the charge of the innkeeper and the protection of the inn, so as to make the innkeeper liable as for breach of duty, unless the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances". Circumstancs, of course, may differ in each case, and therefore each case must be considered in the light of its own peculiar circumstances. "What may be an ordinary act at a small inn,,' says MONTAGUE SMITH, J. in Oppenheim v. White Lion Hotel Company Limited, 25 Law Times, p. 93, "may assume a different aspect at a monster hotel".

It is submitted for the respondents that as regards the first loss Mr. Cumming's act in leaving the money in an unlocked drawer when departing from the hotel was an act of imprudence which should disentitle him to recover; and they contend, as regards the second loss, that Mr. Cumming left the door unlocked and therefore was also imprudent.

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Mr. Cumming, on the other hand, in the arguments which he addressed to us, appeared to consider the test was whether he had been guilty of any breach of duty towards the hotel. $_{\rm He}$ appears to think that wherever the word "negligence" is employed it connotes a breach of duty. There is no authority, in my opinion, for such a proposition. One only has to consider many cases on contributory negligence to arrive at that conclusion. There is no virtue in the choice of the language: negligence, imprudence or carelessness would equally do in this case. The sole question is whether the hotel can show that the appellant has so conducted himself in such an imprudent manner towards his property as to have brought about its loss.

There is no doubt that when a Court comes to the conclusion that a claimant in respect of the loss of property has been imprudent in his conduct towards it, it may appear to demand from him wisdom after the event; and I have equally no doubt that many people who have read the report of this hearing may come to the conclusion that in their own conduct towards their property at various times they may not have reached the standard of care the Magistrate in this case appears to have required from the appellant. But it is really not a question of what people actually do, it is a question of what a reasonable man ought to do.

With regard to the first loss, I have no hesitation in coming to the conclusion that the appellant did not reach that standard of care that the circumstances required of him. He appears to have thought that it would be an unsafe thing to leave his money exposed to view in his bedroom, therefore he put it in a drawer; he appears appears to have thought that if he left it exposed to view when the drawer was opened he would be running some risk, therefore he put it under some socks. He ought to have appreciated that some person opening the drawer out of inquisitiveness to see what was in the drawer, or indeed with some dishonest intention at the back of his mind, might very well go rummaging in that drawer. He knew, or ought to have known (as most hotel guests do know), that hotel servants enter hotel bedrooms from time to time in the course of their duties, and there is no reason why he should have assumed that the hotel staff were absolutely proof against human temptations.

If this money had been stolen while he was in the hotel, I should have no hesitation in saying that his imprudence had led to its loss. I can see no reason why he should be in a better position because it happened when he had left the hotel. He may have been too ill or too absent-minded to refer to it when he left the Nursing Home, but that merely makes his original carelessness continuous. He has endeavoured to shift the responsibility back on to the hotel by saying they facilitated the theft by allowing some person or other to get possession of a duplicate key. I can find in the record no evidence of such negligence on the part of the hotel.

I hold, therefore, that in respect of the first loss the appeal fails.

As regards the second loss there was ample evidence upon which the learned Magistrate could have come to the conclusion that the appellant was even more negligent than on the previous occasion. He has, unfortunately, not given a clear finding of facts but has said that "in the circumstances one cannot avoid the conclusion that the plaintiff was negligent".

In view of this somewhat defective Judgment, we have to consider from the record whether the conclusion that the appellant was negligent is in all good reason inevitable. Now the appellant had already suffered one loss: the thief had defied the locked door and he had also discovered the appellant's hiding place. There had been no sort of investigation into this theft, and the thief, therefore, if he were still in the hotel, might have come to the conclusion either that the appellant had not discovered his loss at all or did not care whether he lost money In such circumstances it might readily be anticipated $\quad \text{or} \;\; \text{not}.$ that the thief, if still in the hotel, might pay a second visit and try his luck again.

Now the theft must have taken place either when the appellant had left his room or when he was sleeping in it. In either case the money was easily accessible. The appellant himself said that he may have gone down to get some Ovaltine. It was alleged in the Pleadings that part of the appellant's negligence consisted in leaving his door unlocked. He never stated in his own evidence that he locked the door either on this occasion or on any other occasion except when he left the hotel, and one witness stated, and was not contradicted, that he had told her that he never locked his door. It is obvious that, with his previous experience behind him, the appellant should not have left his room with his money so easily discoverable; certainly not without locking his door: and even if he had locked his door on that particular occasion it seems to me that in view of the fact that a locked door had proved an insufficient barrier on the previous occasion no prudent man would have left his money where it could be so easily found.

If, on the other hand, the theft occurred while he was sleeping and the door was unlocked, it seems to me that in view of his previous experience he was certainly imprudent; when one adds to the fact of an unlocked door an occupant of the room who is unfortunately very deaf, it would appear that this case is stronger even than Oppenheim v. White Lion Hotel, because in this case the appellant ought to have remembered that there had been a previous theft of his money in that very room. Even if he had locked the door before going to sleep, it is rather difficult to see how, being as deaf as he was, the locking of the door would have afforded an adequate protection. But I think the facts establish that the door was not locked.

The appellant endeavours to meet this evidence of carelessness by saying that he never thought about his money at all, and that as regards the previous theft "one drop of water does not make an ocean". One might reply to these observations that failure to advert to the possibility of being robbed ought not to put a person in better position than if he had adverted, and that "once bitten, twice shy".

I am of opinion that the evidence on the record substantiates the appellant's negligence, and I think the appeal on this point also fails.

I would observe that the appellant has argued very strenuously that the learned Magistrate ought to have framed issues as directed under Order XIII of the Civil Procedure Rules. Issues of fact certainly ought to have been framed, but I do not consider that in view of the evidence any injustice has been done to the appellant; and this is a Court of Justice and not an Academy of Law.

I would dismiss the appeal with costs in this Court and in both Courts below.

LAW, C. J.—In this case, the Resident Magistrate found as facts, on appellant's evidence, that he first lost Sh. 292/50 and shortly afterwards Sh. 165/50 from his room at respondent's hotel. The law on this subject is quite clear, namely, that an innkeeper is at Common Law an insurer of the goods of the guest which are brought to the inn, but he is relieved from this liability if the loss of the goods has been occasioned by the negligence of the guest himeslf. Various decided cases have been brought to our notice in illustration of this principle, but they are of no real assistance as each case must be considered with reference to its own peculiar circumstances. The responsibility which lies on an innkeeper is a heavy one, because he can only avoid the liability by proving that the loss was occasioned by the guest's negligence. This case, therefore, calls for consideration as to whether or not the respondents have been able to establish appellant's negligence.

With regard to the first loss, the evidence is that the appellant kept the money in an unlocked drawer in his room, under some socks, when he left the hotel for a nursing home for an uncertain period. It is admitted by respondents that the room remained locked (so far as is material to this case) during the ubsence of appellant. No one can say exactly when this money was taken, but it appears to have been stolen between the 29th September and 2nd October. The respondents admit that there are duplicate keys for all the rooms which are available to their servants during the day-time. Appellant himself says he never gave a thought to the money when he left the hotel. There is no suggestion in the evidence that the thief entered the room otherwise than by unlocking the door. On a consideration of these circumstances the Magistrate held that it would have been an ordinary act of prudence on appellant's part when he went to the nursing home to take his money with him or else to ask the respondents to take charge of it and in this respect the appellant was negligent. With this view I would agree. The entering of the room by the thief was not the act which occasioned the loss, which I consider was due entirely to the lack of prudence on appellant's part in leaving the money in a place where anyone could find it without difficulty. In my opinion the appellant was almost as imprudent in leaving the money in the manner described as he would have been had he left it in the drawer The difference between covering and not covering uncovered. the money with his socks represents degrees of lack of prudence, which, to my mind, cannot affect the matter. In the circumstances, I would agree with the Magistrate's finding that the money was lost through appellant's negligence. The respondents have been properly relieved of their liability in so far as this first loss is concerned.

Regarding the second loss, the position is not entirely satisfactory from the point of view of the finding as expressed by the Magistrate. In this instance we know that the appellant had very recently experienced another loss at the same hotel. He does not seem to have acted any more prudently than previously; he did not benefit by his earlier experience. One would gather from his evidence that he can afford to be indifferent to the value of money. Appellant says he kept his money, on this occasion, in the clothes from which he had changed and which he left on a chair next to his bed. Two of the respondents' witnesses state he told them next day that he was not sure whether he put the money on the table or left it in his clothes. On of those witnesses (Mrs. Sattler) added he said also that he never thought of locking his door. The other witness (Mrs. Beer) said that in the course of her duties she used to inspect his room, to see if the servants had tidied it, and that she never found the door locked. Appellant himself does not allege a practice of locking his door except when going outside the hotel. Appellant suggests in his evidence that he may have gone downstairs after changing his clothes, for some Ovaltine or something. He does not appear On the other hand, however, Mrs. Beer certain about this. says she saw him that evening at dinner and later in the writing room; Mrs. Sattler only speaks to having seen him in the writing room till about 11 p.m. Next morning appellant missed his money. He had slept in the room, presumably, in view of his own evidence, with the door unlocked. The Magistrate's finding in this connection is that the evidence is to the effect that appellent was not certain what he did with the money when he changed his clothes nor was it certain how long he was away from the room nor whether he locked the door when he went out. From the circumstances the Magistrate drew the conclusion that appellant had been negligent. As expressed, this conclusion does not necessarily follow. But the question for consideration, substantially, is whether the evidence establishes that respondents have discharged the onus of proving appellant's negligence. In my opinion there is ample material on which one can come to such a conclusion and it is the only reasonable conclusion at which the Magistrate could have arrived. Whether appellant left his room for dinner and thereafter went to the writing room or whether he remained in his room till the following morning, does not seem very material. Whichever view the Magistrate may have had in mind, but not definitely expressed, the fact remains that appellant left his door unlocked throughout, and the opportunity existed throughout for the thief to slip in and take the money which was readily available in the clothes or on the table. Nor would it matter if appellant was in his room sleeping at the time of the theft, because, being unfortunately deaf, he could not have heard the thief. From all these circumstances and in the light of his previous experience, I am satisfied that he

exhibited a complete lack of prudence. A careful man would have locked up money in his box if he desired to keep it in his room. In my opinion this loss was due entirely to appellant's negligence, and here again. I would agree that respondents have discharged the onus of proof on this point.

Accordingly, I would dismiss this appeal with costs.

WEBB, J.—I am of opinion that this appeal fails. The law is that an innkeeper is an insurer of his guest's property against theft and is liable for its loss unless the negligence of the guesthas occasioned the loss, in the sense that the loss would not have happened if the guest had used the ordinary care that a prudent man might reasonably be expected to take under the circumstances (Cashill v. Wright, 6 E. & B. 891).

The appellant, I think, has misunderstood the use of the words "negligence of the guest" as connoting the breach of a duty owed by him to the innkeeper. Negligence sometimes does bear this meaning but the concluding words of the passage quoted above show that there it means only a lack of care in the treatment of one's own property, where there can be no correlative duty.

The appellant has also taken objection to the fact that the learned Resident Magistrate did not settle issues of fact as required by Order XIII. In my view the absence of a formal settlement of issues does not constitute an irregularity where the facts in dispute and the decision upon them plainly appear from the judgment. As regards this particular loss the facts were really not in dispute. The appellant had a sum of about £23 in notes among his socks in an unlocked drawer in his bedroom; he left the hotel for a nursing home without mentioning this fact but having merely asked the housekeeper to have his room locked, which was in fact done; there was a duplicate key of the room which, like all bedroom keys, was available for the staff for the performance of their duties; some few days later it was found that about £13 was missing.

In considering whether upon these facts there was evidence of negligence by the appellant that occasioned the loss, the whole of the facts must be looked at, and it must be remembered that negligence is relative both to the nature of the property and to the place and circumstances. Obviously greater care should be taken of money than would reasonably be expected in the case of property less easily stolen, and (to adapt the words of MONTAGUE SMITH, J. in Oppenheim v. White Lion Hotel, L. R. 6 C. P. 515), what would be prudent in a small hotel in a small town might be the extreme of imprudence at a large hotel in a city like Nairobi. In my opinion it is not necessary that the negligence of the guest should consist in display or in an act of such a nature that it constitutes a positive temptation to an honest servant. It is common knowledge that the servants of an hotel have occasion to enter the bedrooms in the ordinary course of their duties and, in my opinion, the learned Resident Magistrate was justified in holding, as he did, that this loss would not have occurred but for the appellant's failure to take that care of his money which an ordinarily prudent man would have taken in the circumstances.

Regarding the second loss there were disputed issues of fact. both as to the place in which the appellant had left the money (though this, I think, was not important) and as to the length of time for which he was absent from the room. Here I think it would have been well if issues had been framed and findings of fact recorded, but in the circumstances of this case I do not think that the result is affected by this irregularity. After the appellant had already lost a considerable sum of money from his bedroom he once more left money in a place in which it would be easily discoverable; the uncontradicted evidence is that he did not lock his door save when leaving the hotel, and he is, unfortunately, very deaf. Assuming that he never left his room at all it would have been easy for a thief to enter during the The facts are even stronger against the appellant than night. those in Oppenheim's case, in which it was held that the plaintiff was not entitled to recover.

In my opinion the appeal should be dismissed with costs.