[1952] EACA 167

## COURT OF APPEAL FOR EASTERN AFRICA

#### Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Cox, C. J. (Tanganyika)

## OWEN-THOMAS TRANSPORT CO. LTD., Appellant's (Original Defendant) v.

# FREDERICK JOHN THOMAS ALLEN, Respondent (Original Plaintiff) Civil Appeal No. 71 of 1951.

#### (Appeal from the decision of H. M. High Court of Tanganyika-Abernethy, Ag. J.)

Negligence—Bailee for reward—Theft by servant.

The appellant company stored certain articles and personal effects belonging to the respondent in a godown. Whilst in the godown a quantity of personal clothing was stolen and traced to the night watchman employed by the appellants. This man had been engaged on an oral recommendation of his former employer and was entrusted with the key of the godown on occasion at night. The High Court, Tanganyika, found the appellants guilty of negligence.

Held (17-10-52).—The employers were guilty of negligence in entrusting him with the key of the godown at night without making more searching inquiries as to his character and antecedents.

Appeal dismissed.

Cases referred to: Cheshire v. Bailey, (1905) 1 K. B. 237; Mintz v. Silverton, 36 T. L. R. 399.

O'Donovan for appellants.

Dodd for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal from a judgment of the High Court of Tanganyika. The material facts which are not in dispute may be briefly stated. The appellant company on the instructions of the respondent collected certain articles and personal effects belonging to the latter from an hotel in Dar es Salaam and stored them in a godown. Whilst in their custody some of the cases were broken into and a quantity of personal clothing removed. The theft was traced to a night watchman employed by the appellants. This man had been engaged by the manager of the company on the oral recommendation of his former employer who said that he had guarded premises for approximately three months and that he could recommend him. It was established that the watchman-was given duties to perform beyond the mere watching of the godown. He was entrusted with the key of the godown because on occasion he was expected to receive incoming packages and to arrange stacking. The appellants' manager frankly admitted that on more than one or two occasions this night watchman was given the key at night, since at times particularly inflammable articles were stored in the godown and it was thought advisable to provide for easy access in case a fire broke out. It was on these facts that the learned trial Judge found negligence on the part of the appellants so as to make them as bailees for reward liable to the respondent for the loss of the articles. There is no appeal before us on the quantum of damages which the learned trial Judge assessed at Sh. 9,000. It is well established law that in an ordinary contract of bailment bailees cannot be held responsible for thefts committed by their servants unless such thefts are attributable to their own negligence (Cheshire

v. Bailey, (1905) 1 K. B. 237). An onus, however, lies on the bailee to show that he took reasonable care of the property entrusted to him. The issue in this appeal accordingly narrows down to the sole issue as to whether the learned trial Judge was justified on the evidence in finding the appellants negligent, and if so whether the loss of the respondent's property can fairly be attributable to such negligence. Mr. O'Donovan has argued that the learned Judge was wrong in attributing negligence to the appellants' manager, merely because he engaged the watchman on an oral recommendation and did not trouble about written references. If the alleged negligence stopped there I would agree with this submission. A seemingly excellent written reference may be a forgery, whereas an oral assurance by a servant's previous employer can reasonably be regarded as the best evidence of character. As was said by the learned Judge in Mintz v. Silverton, 36 T. L. R. 399: -

"Nothing will lead me to decide that an employer who goes to the last employer and then to the home and finds everything right has been negligent in the selection of a servant."

I also agree with Mr. O'Donovan that there is nothing to show that any further inquiries into the watchman's antecedents would have revealed anything to put the appellants on their guard. He was not known to the police and he had no criminal record. In all the cases cited to us where negligence in the engagement of a servant was in issue, subsequent inquiries revealed bad character.

However, the matter does not by any means end here. It is clear to me that the true basis of the learned Judge's finding was that he considered that the appellants had failed to demonstrate that they had taken as much care of the packages entrusted to them as a man of ordinary prudence would under similar circumstances have taken of his own property. This was the correct test to apply and I consider that there was ample evidence to justify the finding that the appellants had failed to satisfy it. It is not in dispute that the man engaged by the appellants was an uneducated African belonging to the ordinary watchman class. A senior European police officer called by the respondent said that such men usually sleep outside buildings at night. This may be only too true but what I assume this witness meant was that a watchman of this class would watch the premises from outside, perhaps make sure that doors and windows were secure, but that ordinarily he would not have free access at night to the interior of the premises. The evidence of the appellants' manager, which was most fairly and frankly given, discloses the whole cause of the unfortunate loss of the respondent's property. He said this: -

"Since then the locks and watchman changed. No personal luggage taken... Have a watchman now. He never has a key and I would not give him the key. I regret that the watchman was ever given the key.".

Mr. O'Donovan's second argument that even if the appellants were negligent the loss of the property was not attributable to such negligence can be briefly dealt with. It may well be that had further inquiries been made about the watchman nothing would have led the appellants to believe that he was a man of criminal propensities. However the finding of negligence by the learned Judge did not rest on that basis alone. It is clear that the Judge thought that it was gross neglect on the appellants' part to allow this man of the ordinary watchman type to have ready access at night to a place where he could quite easily remove or rifle personal luggage. I am in complete agreement with that. The man was engaged as a watchman who was known by his last employer to have watched premises satisfactory for three months. That is all. If it was always the intention of the appellants to employ this man in a position of trust and to put him in the way

of temptation, then their inquiries into his character and antecedents should certainly have been much more searching. Failing that, it was in my opinion negligent of them to entrust him with the key of the godown at night. I consider therefore that the judgment of the Court below was well founded and that this appeal should be dismissed with costs. $\mathcal{L} \times \mathcal{L}$

SIR NEWNHAM WORLEY (Vice-President). I agree and have nothing to add.

Cox, C. J. (Tanganyika).—I also agree.