Davis v Lockstone

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and Juta JA
• Judgment Date: 19 February 1921
• Citation: 1921 AD 153
• Hearing Date: 09 December 1920
• Court: Appellate Division

Solomon, J.A.:

This case raises the-question of the extent of a hotel keeper's liability in respect of goods brought by his guests into the hotel. The question is one which must often have arisen, yet curiously enough there is no decided case, so far as I know, on this subject in any of 'the South African courts.

The basis of our common law with regard to the liability of an inn keeper is the Praetor's Edict, which is as follows: "Where mariners, inn keepers or stable keepers have' received the property of anyone for safekeeping, then, unless they restore it, I will give judgment against them." (Digest 4,9.1). According to Ulpian in the case of mariners the liability attaches to all goods put on

Solomon, J.A.

board and not only to those which are specially entrusted to them (Digest 4.9.1, 8); and as inn keepers and mariners are put on the same footing, it would seem to follow that the former also are liable for all goods brought into their inns and not only for those entrusted to them for safekeeping. The same jurist states that under the Edict "the party who took in the goods is bound absolutely, even where the goods are lost or damage sustained through no fault of his, unless it is a case of damnum fatale." That the Roman law on this subject was adopted in Holland seems fairly clear from the authorities, which are very fully set out in the reasons of the learned judge in the court below. Voet (4.4.9, 1) is quite explicit on the subject. "Mariners, inn keepers and stable keepers carrying on trade by means of their ship, hotel or stables are presumed to have undertaken the custody of anything put on board their ship, or into their hotel, although they may not have accepted money for it." He then points out that in addition to the actions locati aut conducti or depositi the Praetor had provided other more effective remedies by his Edict, the first of which was an action in factum arising quasi ex contractu which was given to him who had brought anything on board ship or into an inn for its recovery. "The action," he says, "is allowed against the inn keepers, etc. . . . to repair and make good all damage caused by theft, rotting, or otherwise in whatever manner, that, alone excepted which is proved to have happened through damnum fatale or vis major, as for instance through shipwreck or damage done by pirates. To which is not, dissimilar the case where the hotel or stable being broken into, the traveller's goods or horses have been stolen, provided that there has been no accompanying neglect or culpa on the part of the inn keeper or ostler." (Voet 4.9.2) (Sampson's translation).

Van Leeuwen in his Commentaries (4.2.10) is also very clear on the subject. "So far that a skipper or inn keeper is liable to the full extent for property received into his ship or inn, although it was damaged or lost without any neglect on his part." Again Schorer in his Notes to Grotius (486) referring to an inn keeper's liability says that "by the common law he is absolutely bound, provided the loss be not due to an unexpected and unavoidable fatality or vis major, for in that case Peckius states that there is no liability at all." These authorities are sufficient for the purpose, though they might easily be multiplied.

Solomon, J.A

That the Praetor's Edict is in force in South Africa has been' recognised by the Courts in many cases, chiefly in connection with' the liability of shipowners. In Crocker v Doig & Murray (1 N.L.R. 117), CONNOR, C.J., said: "In this civil action for the property's value shipowners, inn keepers and stable keepers were supposed to have implicitly contracted that the property should be kept safely: and this was held to wake them liable absolutely unless the loss was occasioned by something in the way of inevitable fate or vis major, which would not include theft as distinguished from robbery with violence not to be resisted." In Stretton v Union Castle Co. (1 E.D.C. 335), SHIPPARD, J., quotes with approval a passage from Leyser that neither culpa nor dolus need be proved but only the facts of the receipt and loss or damage." In the case of Tregidga v Sivewright, DE VILLIERS, C.J., recognised the Edict as part of our law, and in expounding it said: "The construction placed on this Edict was that the bailees named were liable in every case of loss or damage occasioned by theft, injury or otherwise although happening without any default on their part, unless it happened by superior force or what was called ' fatal damage,' as for instance by shipwreck or by the act of pirates." It is true that in certain decided cases it seems to have been assumed without careful consideration that the liability depended upon negligence, but in none of these was the law on the subject investigated, as it was in those referred to above, so 'that I do not think that the authority of the latter has been in any way shaken by those decisions.

It was contended in the court below, though the argument was not seriously pressed on the appeal, that the maxim cessante ratione cessat lex should be applied in this case, and that the law fixing an inn keeper with liability even when he had not been guilty of negligence should he declared to be obsolete. The main reason given by Ulpian for the Edict is that "unless the rule were laid down the persons mentioned would have it in their power to conspire with thieves against those whom they took in." That certainly in modern conditions does not seem to be a very satisfactory reason for laying down what undoubtedly is a very stringent rule, though it is interesting to find that in the case of Kent v Shuckard (2 B. & Ad. 804) LORD TENTERDEN quoted this very passage from the Digest in a case in which an inn keeper was held liable for the theft of money belonging to one of his guests. But

Solomon, J.A.

in any case the law is one which applies not only to inn keepers, but also to mariners, and seeing that in regard to the latter the, Edict has been held to be in force in many recent cases, it is much too late...