Missing-load Case in the Court of Appeal A PPEALS in
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an action which arose I-1 out of the disappearance of three lorry-loads of scrap lead were heard before the Court of Appeal last week.
The plaintiff was the Transport and Export Co., Ltd., Manchester, and the defendant was R. Davis (Haulage), Ltd., Poplar. The defendant appealed against the judgment of Mr. Justice Hallett in awarding £566 5s. 6d. to the plaintiff company. which also appealed against the dismissal of its claim in respect of two of the loads.
Mr. R. T. Monier-Williams, for R. Davis (Haulage), Ltd., said that the company contracted to collect scrap lead at a Ministry of Supply depot at Llansarnlet, Swansea, and deliver it on behalf of the plaintiff to consignees. In September, 1948, a lorry driver, who gave the name of Last, called at the depot, and produced a genuine delivery order. The depot officials were suspicious, as they did not know Last, but after one of the defendant's drivers had said, "It is O.K., churn; he is one of our drivers," he was given a load of lead. Later in the same month, Last called again twice and obtained two more loads, which never reached the consignees. He was not one of the defendant's employees.
Counsel submitted that the defendant pompany was not negligent.
W. A. Fearnley-Whittingstall, K.C., for the plaintiff company, submitted that it had shown that the stolen delivery order which Last handed tn was one of those sent to the defendant company, which must have been negligent.
Judgment
Giving judgment, Lord Tucker said that the plaintiff sent delivery orders to the defendant, and the defendant sent some of the orders to the Ministry's depot. Mr. Justice Hallett found that the defendant was not liable in respect of the second and third loads, because the procedure which had been arranged between the parties was not carried out.
" I find it impossible to say," said Lord Tucker. "that the Judge was wrong in holding that there was no case against the defendant in respect of those two loads."
With regard to the first load, Lord Tucker said that he doubted whether the defendant was ever bailee of the delivery order which Last produced. If the defendant was not bailee, the plaintiff failed to establish negligence by the defendant. The only onus on the defendant company was to show that it exercised due care in the custody of the delivery order and it was not necessary for it to show how the loss occurred if it had proved that it took all reasonable care.
With regard to the one load in respect of which the Judge held the defendant liable, the appeal succeeded.
Lord Justice Asquith and Lord Just'ce Denning agreed. The appeal by R. Davis (Haulage). Ltd., was allowed, and the appeal by the Transport and Export Co., Ltd., dismissed with costs.