George v Fairmead (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Fagan CJ, Steyn JA, Malan JA, Price AJA and Van Blerk AJA
• Judgment Date: 27 March 1958
• Hearing Date: 17 March 1958
• Court: Appellate Division

A Fagan, C.J.:

The proceedings in this matter were originated in the magistrate's court of Wynberg (Cape). The appellant there sued the respondent company, owner of a hotel known as Fairmead Court, for £125 3s. 0d. as damages for the loss of certain clothing and personal effects which were stolen from his room on 1st March, 1955, while he was a lodger in the hotel. At the close of the plaintiff's (appellant's) case, B the magistrate granted absolution. The Cape Provincial Division upheld the magistrate's judgment, and gave the appellant leave to appeal to this Court.

The appellant took occupation on 1st February, 1955, of a room situated on the second floor of the annexe to the hotel. In the morning of 1st C March he left his room as usual to go to work, leaving his door locked with a Yale type lock and another door, which could open on to an outside stairway but which was in fact no longer being used, secured by a sliding bolt on the inside. When he returned that evening he found his main door still locked and the bed unmade (that had happened before, he said), but he found the bolt of the back door, as he put it in his evidence,

'half undrawn . . . just on the edge of the socket. I think a person could have forced it from the outside.'

His clothing and other personal effects, including three suitcases, were missing.

'The aforesaid articles,' said the summons, 'are missing and have been unlawfully and wrongfully removed due entirely to the gross negligence and carelessness on the part of the defendant Company in one, more or all of the following respects,'

and particulars were then given of the alleged negligence. The defence set up in the plea was a total denial of the various acts of omission and commission complained of and an averment that the appellant had signed a form limiting the hotel's liability in respect of property F brought by him upon the premises. No replication was filed, and the averments in the plea had therefore, in terms of the magistrate's court rules, to be taken to be denied.

The magistrate dealt in his judgment with each of the specific G allegations of negligence and found no negligence established in respect of any of them by the evidence led for the appellant. He also held that the appellant was bound by the terms of the document limiting the respondent's liability, which the appellant admitted having signed.

I shall first of all consider the issue raised in connection with this document, as my conclusion on it will affect my consideration of the issue of negligence.

H The appellant's evidence was to the effect that on 18th January, 1955, he made arrangements with the respondent company through a Miss Gurek, the housekeeper-receptionist, to stay at Fairmead Court as a paying guest, in a room that was shown him, from 1st February at £27 per month plus £1 10s. 0d. for garage space. He signed no document on that date and no mention was made of one. The only agreement was the verbal one made with Miss Gurek and it was binding as far

Fagan CJ

as he was concerned. He paid a deposit of £3 at Miss Gurek's request. There was no mention of any condition excluding the hotel from liability for loss by fire, theft, etc.

I now quote the passages in the appellant's evidence that relate to the signing of the form on which the respondent relied:

'I moved in on 1.2.55 with my luggage. I saw Miss Gurek in the office, A in the main building. She asked me to sign the hotel register. I signed it. My attention was not drawn to anything specific in the hotel register. I was not told by Miss Gurek then or before that the verbal agreement made on the 18th January was subject to other conditions. The hotel register did not take long and there was no discussion at all. . . .

I hand in the original form of register which I signed on 1.2.55 - Exh. 'A'. this has been extracted from a book and the form is one of three to a page. Miss Gurek did not complete the form before I signed B it. She did not read the form or explain it to me. . . . The writing in ink on exh. 'A' is my handwriting. I wrote my name on top, date of arrival, tariff and nationality and I signed it. The room number was not filled in. It took about half a minute to fill in the form. I did not have in my mind that I was entering into a new contract, merely that I was signing a register. That is all Miss Gurek asked me to do. I did not read or discuss the text of the form with Miss Gurek. The original was not given to me. . . .

C I agree that there is a long passage in exh. 'A' above my signature. I also filled in my date of arrival, tariff and nationality. I did not read the conditions. It was presented to me as the hotel register. I did not bother to read it.'

While in the record we have only a typed copy of exh. 'A', specimens...