Q.B. Div.]

Tuesday, April 6.

(Before CAVE and LAWRANCE, JJ.)

CONROY v. PEACOCK. (a)

Practice Employers' Liability Act 1880 (43 & 44 Vict. c. 42) s. 4-Notice of injury-Absence of notice-Statutory defence-County Court Rules 1889, Order X., rr. 10, 18.

An action under the Employers' Liability Act 1880 to recover compensation for an injury is (by sect. 4 of the Act) not maintainable unless notice of the injury is given within six weeks from the occurrence of the accident causing the injury. Held, that a defence to the action on the ground that such notice under sect. 4 has not been given is a “statutory defence" within the meaning of Order X., r. 18, of the County Court Rules 1889, and therefore cannot be raised without five days' notice having been filed in accordance with rule 10 of the same order.

APPEAL from a decision of the learned Deputy County Court judge at Wandsworth.

The action was brought by the plaintiff under the Employers' Liability Act 1880 to recover compensation for an injury caused to him by an accide which occurred on the 17th June, though nt the particulars of claim the date was given as the 23rd June. Notice of the injury was not given until the 3rd Aug.

At the hearing the defendant attempted to raise the objection that notice of the injury had not been given within six weeks of the occurrence of the accident as required by sect. 4 of the Act, which provides that an action under the Act shall not be maintainable unless such notice has been given.

The learned deputy judge refused to allow this objection to be raised on the ground that it was a statutory defence, of which notice should have been given under Order X. of the County Court Rules 1889, rr. 10 and 18.

Rule 10 provides that, where the defendant intends to rely upon any of the grounds of defence mentioned in rules 11 to 20 (including rule 18, which refers to any statutory defence or any defence of which the defendant is required by any statute to give notice), he shall file a notice stating thereon his name and address, together with a concise statement of such grounds, five clear days before the return day.

The defendant appealed.

S. Lynch for the appellant.-By sect. 4 of the Employers' Liability Act 1880 it is a condition precedent to the plaintiff's right to bring his action that notice of the injury should have been given in accordance with sect. 4. If such notice

(a) Reported by G. H. GRANT, Esq., Barrister-at-Law.

has not been given the action fails of itself without any defence. Therefore, the objection that the notice has not been given is not a statutory defence of which the defendant ought to have given notice, and the learned deputy judge was wrong in so holding. He referred to

Moyle v. Jenkins, 8 Q. B. Div. 116;

Keen v. The Millwall Dock Company, 46 L. T.
Rep. 472; 8 Q. B. Div. 482.

At any rate, the court will grant an adjournment to enable the defendant to give the necessary notice.

Moyses, for the plaintiff, was not called upon.

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CAVE, J.-This case is a perfectly clear one. The County Court Rules 1889 (Order X., r. 10) provide as follows: [the learned Judge read rule 10 as set out above, and continued:] Now the defence set up by the defendant is that, notwithstanding the plaintiff has a good cause of action, yet he cannot maintain the action because he has not given notice under sect. 4. That is obviously a statutory defence, seeing that but for the section there would be no defence to the action at all. Therefore, the defence ought to have been pleaded as the rule requires. The same rule continues as follows: Provided that in case of non-compliance with this and the above-mentioned rules, and of the plaintiff's not consenting at the trial to permit the defendant to avail himself of such defence, the judge may, on such terms as he shall think fit, adjourn the trial of the action to enable the defendant to give such notice." Now in this case the judge was never asked to grant an adjournment. At the end of the plaintiff's case he gave his ruling against the defendant, who then had two courses open to him; he might either (1) appeal against the judge's ruling; or (2) accept the ruling as correct and ask for an adjournment in order to give the notice. The defendant took the former course, and chose to test the judge's ruling. I think that ruling was correct, and therefore the defendant fails, and it is not open to him now to do what he might have done at the trial. Besides, I have no doubt the judge, if he had granted an adjournment, would have imposed onerous conditions on the defendant. The appeal fails.

LAWRANCE, J. concurred.

Solicitors for the plaintiff, C. F. Appleton.
Solicitor for the defendant, S. Franklin.

1Q3711

Q.B. Div.]

APPEAL by the defendants from the Southwark County Court of Surrey.

The facts were stated by the learned deputy County Court judge in his judgment as follows:

The plaintiff deposited his gun in the cloakroom of the defendants, and he received a printed ticket which he had to give up on receiving the gun back. On the back of this ticket and also on its face were printed certain conditions in small type, but the attention of the plaintiff was not called to them though he could see that something was printed there; and as a matter of fact the plaintiff knew nothing of what the particular conditions were, but the learned judge considered that he was bound by the case of Van Toll v. South-Eastern Railway Company (6 L. T. Rep. 244; 12 C. B. N. S. 75) to hold, and he did hold accordingly, that the plaintiff was bound by the conditions, more especially as he admitted that he had frequently received similar printed tickets from the defendants.

These conditions were headed "Important Notice;" and the condition in question was:

The 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 luggage room for a period longer than twenty-four hours. The company will not be responsible for any package exceeding the value of 101.

The gun in question exceeded the value of 107., and when it came to the plaintiff's hands it was found to be broken, and the learned judge said that he could not doubt, after hearing the evidence, that it was injured by the careless handling of the company's servants; and as he construed the condition that "the company will not be responsible for any package exceeding the value. of 101.," as meaning only that the company would not be responsible for the article itself, which would include and have reference to the loss of the article only and not to any damage it might sustain, he was of opinion that, although the company would be protected by the condition against the loss of the article, they were not protected against damage to it, but were liable for such damage.

He accordingly gave judgment for the plaintiff for 51. 5s. with costs, and gave the defendants leave to appeal.

The defendants appealed.

R. Brown (Archibald Willis with him) for the defendants. The question is, whether the ticket covers damage or injury to the gun, or only covers the loss of the gun itself, as the learned judge held. The expression "responsible for," means that the company will not undertake liability for, and will not be answerable for, either the loss of the article itself, or any damage or injury to the article; and it covers and protects the company from everything, as well damage to the article as the loss of the article itself. The learned judge, in construing the condition as meaning that the company would not be responsible only in case the article itself were lost, placed too narrow a construction upon the condition. It is unreasonable to hold that, although the company would not be responsible for the loss of the whole

[Q.B. DIV.

article, yet that they might and would be liable for a small injury to the article. As the greater includes the less, so exemption from liability for the whole carries with it exemption from liability for injury or damage to the article. When the judge said, in support of his construction of the condition, that what the railway company were guarding themselves against was the chance that a person might deposit things of small bulk and of enormous value, he probably had in his mind the preamble of the Carriers Act 1830. But the bulk is not material, and it cannot be said that the company were only guarding themselves against the chance of small articles of enormous value being deposited. In Van Toll v. SouthEastern Railway Company (6 L. T. Rep. 244; 12 C. B. N. S. 75), which was an action against the same company as in the present case and upon the very same condition, it was held that this condition covered the loss of part of the article, and that the company were not liable for the loss of a part. That case shows that this condition exonerates the company in case of the abstraction of part and not the loss of the whole article. in Pepper v. South-Eastern Railway Company (17 L. T. Rep. 469), upon the same condition it was held that the company were protected from liability for delay in delivering the article. The words"responsible for " at the beginning of the notice mean that the company will not be answerable in any way for articles left by passengers at the station, and the words have the same meaning in the condition now in question. Loss includes damage or injury, and, if it were not so, the company might be liable for a very large claim for the damage of an article deposited with them.

So,

Hume-Williams for the plaintiff. The interpretation which the County Court judge placed on this condition was correct and the judgment for the plaintiff was right. The judge has found, as a matter of fact that this injury was done to the gun owing to the careless handling of the defendants' servants; and therefore it was due to the negligence of the defendants. The question is

whether the condition on the back of this ticket protects the company from the negligence of their own servants. If the company are importing conditions into the contract and are seeking to alter the ordinary liability which would rest upon them as bailees for reward, and to alter their liability for the negligence of their servants, then the onus is upon them to make the condition abundantly clear to the other contracting party. When a company desire to impress special and stringent terms upon customers, there is nothing unreason. able in requiring that these conditions shall be distinctly declared and deliberately accepted. One has only to read the condition here to see that it is capable of the meaning put upon it by the judge, and the very fact of its being ambiguous is fatal to the company. This is not a reasonable condition to import into the contract, and, as laid down by Byles, J. in Van Toll v. The South-Eastern Railway Company (ubi sup.), one of the conditions for the other party being bound in such a case is that the terms contained in the notice shall be reasonable terms. The condition cannot mean that the company is to escape liability for the negligence of their servants. [CAVE, J.-It can hardly be that the company shall be responsible to the extent of 1000l. because

it happens to be damage and not loss.] They have an option of providing as other companies do, that a person bringing a valuable article may insure it at a higher rate. The interpretation sought to be placed upon this condition is unreasonable, because it would enable the company to direct that when an article which is obviously of no value comes into the cloak-room it must be treated with care, but when an article comes in of over 101. it may be treated as they please, because they are protected. That would be an unreasonable result. There is no case which protects the company from injury arising from negligence.

CAVE, J.-I am of opinion that the judgment in this case cannot be supported. The view taken by the learned County Court judge was that the word "responsible" meant responsible for loss, and that it did not refer to responsibility for damage. The result, therefore, of that might be that an article of very great value might be irretrievably damaged, and the damage might be equivalent really to the loss, but because it was damaged, and not lost the railway company would be responsible for the full amount. I cannot believe that that is the interpretation which any reasonable person would put upon these words. There are words in the former part of the ticket which we cannot altogether neglect. "The company will not be responsible for articles left by passengers at the station.' Now, "responsible there must mean responsible not only for the loss but responsible for the damage of the article also. What the company have in effect said is. "If you like to go away from the station and leave your articles on the platform without putting them in the cloak-room, you must not look to us to make good to you any loss or damage which may happen to them while they are so left not in our charge in a room which we have provided for the purpose; we undertake no responsibility of any kind for those articles." It seems to me that, when we have the same word lower down, "The company will not be responsible for any article exceeding the value of 10l.," that means what, in my view, it says, namely, that the company undertake no responsibility for any article which is over the value of 107. If it is not over the value of 101., the company do undertake responsibility for it, and they will be responsible either for the loss of the article or for damage to it; but if it is over the value of 101., then they will undertake no responsibility. If the owner leaves it there under those circumstances he does so at his own risk-the owner's risk-and he must not look to the company if the thing is lost or if the thing is damaged. It seems to me that that is the proper construction to put upon the words, though I cannot see why the company should not have made it a little more clear by saying will not be responsible for loss or injury." It has been suggested that even these words admit may of a difficulty; but that these words "loss or injury" do not cover every possible damage that can happen, I cannot understand. It has been suggested that they do not cover a temporary loss, but why a loss is not a loss because it is temporary, I cannot understand. If the com

66

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pany said they were not responsible for loss, that would naturally mean that they would not be responsible either for the temporary or permanent loss of the article. The question here is, what is

[Q.B. DIV.

the meaning of the words "will not be responsible for"; and I think, looking at the way the words are used in the former part of the ticket, and the absence of anything to show that they are used differently in the latter part of the ticket that the best and correct way to construe them is to hold that they mean that the company will not be responsible at all, and that an article over 101. in value is taken in at the owner's risk, and not at the risk of the company. LAWRANCE, J.-I entirely agree.

Appeal allowed. Solicitors for the plaintiff, Keene, Marsland, and Co.

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Solicitor for the defendants, John W. Watkin.

Wednesday, March 31.

(Before HAWKINS and LAWRANCE, JJ.) REG. v. PELLY AND ANOTHER (Justices). (a) Licensing Licensed premises - Closing hours Found drunk on licensed premises" during closing hours-Liability to conviction-Licensing Act 1872 (35 & 36 Vict. c. 94), s. 12. Licensed premises do not cease to be licensed premises during closing hours, and when they are actually closed to the public; and consequently, a customer who, being neither a lodger nor in: mate of the house, is found drunk on the premises during closing hours, and when the premises are actually closed to the public, may properly be convicted under sect. 12 of the Licensing Act 1872 of being "found drunk on licensed premises."

Lester v. Torrens (2 Q. B. Div. 403) distinguished.

RULE for a certiorari to quash a conviction.

The applicant for the rule, one Albert Lacey, was summoned at a court of summary jurisdiction, held on the 9th Jan. 1897, at Ongar, in the county of Essex, on a charge of being found drunk on licensed premises, namely, the Bell Inn, in the parish of Chipping Ongar, contrary to the provisions of sect. 12 of the Licensing Act 1872; and he was convicted and fined 58. and costs.

Lacey had gone into the public-house in question on the evening of Sunday, the 20th Dec. 1896; he did not leave the house at closing time, which was ten o'clock, when the other customers left, and when the house was closed to the public. A police constable, who was on duty near the Bell inn, suspecting that all the customers had not left the house, gained admittance to the premises about a quarter past ten o'clock, and in the private bar he found Lacey drunk and leaning across the counter talking to the landlord of the house. Upon the constable asking why Lacey was there at that time, both the landlord and Lacey stated that he (Lacey) had previously during the same evening engaged and paid for a bed at the inn for that night, and that therefore he was a lodger in the house.

The justices, however, disbelieved the evidence given to the effect that the defendant had engaged a bed at the inn for that night; and they found as facts that the defendant was not on the night in question a lodger or inmate at or in the licensed premises, and was not intending to sleep (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

there that night; that when the constable gained admittance during the closing hours-the house having been closed to the public at the closing hour, ten o'clock-the defendant was there and was drunk on the licensed premises, and they accordingly convicted him of being found drunk on licensed premises contrary to the provisions of sect. 12 of the Licensing Act 1872 (35 & 36 Vict. c. 94), which enacts:

Every person found drunk in any highway or other public place, whether a building or not, or on any licensed premises, shall be liable to a penalty not exceeding ten shillings, &c.

J. C. Earle, for the justices, showed cause.-The rule seems to have been granted on the ground that Lacey was on the night in question a lodger or inmate in the inn, but the justices have found as a fact that that was not so, and therefore that cannot be now raised. The ground stated in the rule is that the licensed premises are licensed premises only when they are open to the public; and that the moment closing time arrives and when the premises are actually closed to the public they cease to be licensed premises until they are again open to the public. The real question therefore is whether the licensed premises remain licensed premises after closing hours, and whether the justices ought to have applied the doctrine laid down in Lester v. Torrens (2 Q. B. Div. 403) to a case such as this where the person found drunk on the premises was neither a lodger nor inmate of the house. In Lester v. Torrens (ubi sup.), it was he'd by Mellor and Lush, JJ. that where the licensed person himself was found drunk during closing hours on his own premises where he resided, he could not be convicted under sect. 12. That case is entirely different from the present, as there the person charged was in his own house when the house was closed and everybody excluded except the inmates, and the decision simply was that the publican

himself could not be fined under this section for getting drunk or being found drunk on his own premises after closing hours. That principle does not apply here where the person found on the premises was neither landlord, nor lodger, nor inmate of the place, and the reason given by Mellor, J. cannot apply here, as the justices have found that Lacey had no right or business to be in the house at the time. Lacey could have been convicted under sect. 25 for being found on the premises during closing hours; and the landlord could have been convicted under sect. 24 for not having properly closed his premises at the closing hour, so that in fact Lacey was on licensed premises which had not been properly closed, and was found drunk thereon. Again, a bona fide traveller has a right to go into premises during closing hours; if he does so and gets drunk, then, if the contention on the other side be right, he cannot be convicted because, although

[Q.B. DIV.

on the premises, the premises are not open to the general public. That result would present serious difficulties, but no difficulty at all would arise as to a bona fide traveller if my contention be right, which is that licensed premises are and remain licensed premises during the whole time from the time the licence is granted until it expires. He referred to

Redgate v. Haynes, 33 L. T. Rep. 779; 1 Q. B.
Div. 89.

John Ogle in support of the rule.-The rule was granted on the authority of Lester v. Torrens (ubi sup.), in which two points were raised, whether the landlord could be convicted under sect. 12 or only under sect. 13, and whether or not the premises were licensed premises after closing hours. I rely on that case as being not merely an obiter dictum, but as being in point here, and although I do not contend that it is conclusive, the judgment of Mellor, J. points distinctly to the conclusion that the premises ceased to be licensed premises for the purposes of sect. 12 at the closing hour. So far as the public are concerned a licensed house when closed at the closing hour becomes a private house, and is no longer a public licensed house, and as the closing time limits the time during which the public are entitled to use the house, so also it limits the time during which the house is a public licensed house. The moment the doors of this house were securely fastened at ten o'clock then the premises were closed and ceased to be "licensed premises" within sect. 12. The point of division is the closing time, and at that time it is the duty of the landlord to clear the house and close the doors; but if be closes the doors, though he does not clear the house of all customers, it would not follow that sect. 12 would apply. As to sects. 13 and 17, the words used are premises" merely.

not "licensed premises"; and that explains the decision in Redgate v. Haynes (ubi sup.), where the conviction was under sect. 17 for suffering gaming on the "premises" merely, which would apply to the premises all night. The case of a bona fide traveller is different, as he would be legally on the premises, whereas the defendant in the present case was illegally there. So far as the decision in Lester v. Torrens (ubi sup.) goes, for the licensed person you can read private person and the same principle and reasoning apply in each case. I base my contention on the judgment of Mellor, J. in that case.

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HAWKINS, J.-I am of opinion that this rule ought to be discharged. The conviction which is sought to be quashed is a conviction under sect. 12 of the Licensing Act 1872. which says that a person who is 'found drunk on any licensed premises shall be liable to a penalty not exceeding ten shillings." [The learned Judge stated the facts and proceeded.] The defendant was found drunk, under the circumstances I have pointed out, on these licensed premises, and there is no reason to suppose he did not go there for the purpose of drinking or using these premises as licensed premises; and, unless there was some lawful excuse for his being there, the landlord of the premises would be answerable for his being there in such a condition, and, indeed, for his being there at all, and consequently the landlord gave an excuse which was found by the justices to be absolutely untrue. Now, ten o'clock was

Q.B. Div.]

the closing hour for this house, and it is said that, if a man is found drunk on the premises_ten minutes before ten o'clock, he would have been liable to this penalty of 10s. under sect. 12; but that, if he remained after ten o'clock for the purpose of getting sober or getting more liquor, as the case may be, then, after closing hour, he could not be fined 10s.; and, in order to support that contention, the case of Lester v. Torrens (ubi sup.), was quoted. I may say, with regard to the decision in that case, that I absolutely agree with it, as that was a charge brought against the occupier of the licensed premises himself, and the charge had reference to his being found drunk in his own house when the house was absolutely clear of customers, the day's work over, and the house actually closed to the public, and the landlord lived on the premises, and it was his private dwelling-house. The court said that the meaning of the Act could not be that a man, under such circumstances, would be liable to a penalty under the section, and, in my judgment, it would be very unreasonable to construe the Act in any other way. He was a private individual in his own house, doing that which every man may do in his own house. Here, it is perfectly true the defendant went into this licensed house for the purpose of getting drink, and was found drunk there after closing hours, being neither the landlord, nor a lodger, nor an inmate of the house. He was, to my mind, found drunk on licensed premises, within the meaning of sect. 12; and, in my opinion, this construction of the section is fortified by sect. 25, which imposes a penalty not exceeding 408. upon any person found without lawful excuse on premises during any period during which the premises are required to be closed; so that, according to that section, if, during any period during which the premises are required to be closed, any person is found in them without reasonable excuse, such person is to be liable to a penalty of 40s. If he had been found sober on the premises during closing hours he would, under sect. 25, be liable to a penalty of 40s. but if found drunk on the premises during closing hours he would, if the defendant's contention be correct, be liable to no penalty at all. I think if a man goes in and uses a licensed house and gets drunk in it, and remains in the house when he has no right to be there-a house, in fact, which he has no excuse at all for entering, except to use it as a licensed house-he is liable to be convicted under sect. 12. I think, therefore, the justices were right, and that this rule ought to be discharged.

:

LAWRANCE, J.-I am entirely of the same opinion. The case of Lester v. Torrens (ubi sup.) does not apply to such a case as this; and, in fact, if it were not for the judgment of Mellor, J. in that case, there would be no ground at all in support of the defendant's contention here. But even in the judgment of Mellor, J. there is an expression which is rather in support of this conviction than otherwise, because he says that the house was closed and "everybody excluded but the inmates." The facts here are entirely different; and under these circumstances, thinking, as I do, that Lester v. Torrens (ubi sup.) is rather an authority in support of this conviction, I think that this rule must be discharged.

Rule discharged.

[Q.B. DIV.

Solicitors for the applicant, Haynes and Clifton, Romford and London.

Solicitors for the justices, Beaumont, Son, and Rigden, for Charles Smith, Ongar.

March 11 and 12.

(Before MATHEW, J., Commercial Court.) MCCALL AND CO. LIMITED v. HOULDER AND · Co. (a)

Insurance-Marine-Ship disabled on voyage— Necessary repairs-Damage to cargo-General average.

A ship rendered unnavigable by an accident in the course of the voyage may, while lying in harbour perfectly water-tight and with her cargo uninjured, be in peril so as to make any unusual act done with her to render her once more navigable, a general average act, and any damage incidental to such act a general average loss.

The H. G. was on a voyage from B. A. to London. While leaving B. A. she bumped on the harbour bar. On coming outside the harbour of L. P.a station at which she was to coal-she became unnavigable owing to her screw going wrong. She was towed into the harbour. A large part of her cargo was perishable, and there was no proper accommodation for stowing it at L. P. The master, in order to repair the screw, tipped her by the head (with cargo still on board) by filling the fore ballast tanks with sea-water, and emptying the stern tanks. Unknown to the captain, one of the pipes through which the fore tanks were filled was fractured, and the sea-water going through it escaped into the cargo. The plaintiffs' goods were injured.

Held, that, while lying in L. P. harbour, the ship and cargo were in peril; that the master's act in tipping the ship by the head was a general average act; and that the damage to plaintiffs' goods was a general average loss.

ACTION for a general average contribution in respect of certain cases of Paysandu Ox-tongues which were damaged while being carried in the defendants' ship from Buenos Ayres to London under the following circumstances:

The goods in question were shipped at Buenos Ayres in the defendants' vessel Hornby Grange, under a bill of lading dated the 18th March 1896, of which bill of lading the plaintiffs were the indorsees. The Hornby Grange, in leaving the port of Buenos Ayres, grounded upon the bar. Sh was got off apparently uninjured, and proceeded on her voyage. While outside the port of Las Palmas, where she was to coal, the Hornby Grange became helpless owing to her screw becoming unworkable. She was towed into Las Palmas and there, on examination, it was found that the screw had come off. As there were no dry docks at Las Palmas and no store where the cargo -which was largely of a perishable nature-could be stowed till the ship was taken elsewhere for repair, the captain resolved to tip the ship by the head with her cargo still on board in Las Palmas harbour, and have the screw put right there. Tipping by the head is accomplished by filling the fore water ballast tanks with water and leaving the aft tanks empty, and in this way (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.