Fish packed in eleven boxes was sent by the Ceylon GovernmentBailway tothe plaintifftotheSlave Islandstation.Asthe boxes
appeared, to contain either no ice or insufficient ice, the defendant,the parcels olerk, reported the matter to the station master. Thestation master, on the orders of his superior officers, instructed thedefendant not to allow the fishtobe removedwithoutthe full
parcels ratebeingpaid(theconcession of areducedratenot being
available to plaintiff, as the fish was not packed with sufficient ice).
The plaintiff refused to pay the full rate, and the fish was sold byauction by the Bailway authorities. The plaintiff thereupon suedthe defendant (parcels clerk) fortherecovery ofdamages,alleging
that the defendant acted illegally and wrongfully.
Held, thattheactionwas notmaintainableagainstthedefendant,
as theplaintiff’s ' remedy, ifany,wasonthe contract with the
Government Bailway, and not founded on tort.
*’ The plaint no doubt states that the defendant acted ‘ unlaw-fully, ’ and wrongfully refused to deliver, but the use of these strongterms does not alter the essential character of the action.1*
“ Although a person who unlawfully refuses to give up propertyof which he has the custody cannot justify the refusal by sayingthat he is only agent or servantofanother, yet,since inorder to
make himlegallyliablehemustbe shownto havehad1 possession,
it is material to consider his exact position towards the goods inquestion.A servant who hasthecareofgoods on his master’s
premisescannot, as a generalrule,besaidto be in possession of
them. The argument as to conversionof the fishby thedefendant
cannot be sustained.”
fp HE facts are set out in the judgment.
Garvin, S.-G., for defendant, appellant.
E. W. Jayewardene, for plaintiff, respondent.
Cur. adv. vult.
January 24, 1917. De Sampayo J.—
I think that the judgment of the Commissioner cannot stand, forthe reason that the defendant is not legally liable to answer theplaintiff’s claim. It appears that some fish, packed in eleven boxes,was carried by the Ceylon Government Bailway from Mannar andJaffna consigned to plaintiff at Slave Island, Colombo, and arrived
(506 )
Da SampayoJ.
Caeeim v.Perera
at the Slave Island station on June 10, 1916. The rule is that,if fish is packed in ice in the proportion of one pound weight of iceat least for each pound weight of fish, it may be conveyed by thetrain at quarter parcels rate, and that otherwise ft is charged atthe ordinary rate. The defendant iB the parcels clerk at SlaveIsland station, and as the boxes did not appear on arrival to containthe required quantity of ice, the defendant opened one box, andfinding that there was no ice in it reported the matter to the station;master, who got three more boxes opened, with the same result.,The rest of the boxes were not opened but were weighed, mid, anallowance being made for the weight of the boxes, were considered!to. contain no ice or insufficient ice. The station master reported,the matter to his superior officers, and on their orders instructedthe defendant not to allow the fish to be removed without the fullrate being paid. The plaintiff refused to pay at that rate, and thefish was accordingly detained and' ultimately sold by auction bythe Bailway authorities.
The plaintiff sued the defendant for the recovery of Bs. 200 asdamages, and the Commissioner has given him judgment. In viewof the legal points upon which this appeal turns, it is not necessaryto discuss the evidence* in detail, or to examine tfie criticisms of theCommissioner on the method of weighing and of calculating thequantity of ice. In the plaint the plaintiff, after reciting the con-signment of the fish to him and its arrival at Slave Island stationon June 10, states his cause of action against the defendant asfollows: 44 That on the said date the defendant, acting illegally,wrongfully refused and prevented, the removal of the said boxes offish by the plaintiff, to the plaintiff's damage of Bs. 200.”
The ordinary duties of the defendant are not disclosed, but it Isclear that if as parcels clerk he has the business of delivering parcelsto consignees, he can only be said to do so as a servant of the Govern-ment, or (to put it so for the sake of convenience) as a servant ofthe Ceylon Government Bailway. The plaintiff’s real cause ofaction is the non-delivery of the fish in breach of the contract ofcarriage. But it is said on behalf of the plaintiff that he has the optionof suing in contract or in tort, and that his present action is foundedon tort. We are familiar with cases where the owner of goods mayframe his action in one of two ways, but the alternative is not alwaysavailable. In Kelly v. The Metropolitan Railway Company 1 LordJustice Smith stated the distinction thus: 44 If the cause of com-plaint be for an act of omission or non-feasance which, withoutproof of a contract to do what has been left undone, would not giverise to any cause of action (because no duty apart from contractto do what is complained of exists), then the action is founded uponcontract, and not upon tort. If, on the other hand1, the relation, ofthe plaintiff and the defendant be such that a duty arises from that
i (1895) 64 L. J. Q. B. D. 667.
( 607 )
relationship, then the action is ofie of tort.” 8ee also Turner v. StaUi- 1017brass,1 Now, apart from the contract for conveyance of the fish, there ^ sZotayowas no duty on the defendant's part to deliver the fish to the plaintiff, J-and consequently the plaintiff’s only remedy is on the contract. Casaim v.The relevancy of this point is that the contract was with the CeylonPer era
Government Railway and not- with the defendant, and thereforethe defendant could not be sued for breach of that contract. Theplaint no doubt states that the defendant acted “ unlawfully,” and“ wrongfully ” refused to deliver, but the use of these strong termsdoes not alter the essential character of the .action. Fleming v.
The Manchester Railway Company 2 is a strong case, on the im-materiality of the form of pleading. There, in an action againsta railway company as common carriers, it was alleged that thedefendants did not safely and securely carry and deliver a parcelof goods entrusted to them, but so carelessly conducted themselvesthat it was lost. The Court of Appeal, nevertheless, held that theaction was founded on contract.
It is said, however, that there was such detention of the fish bythe defendant as amounted to an act of wrongful conversion, andthat this action was one for such wrongful conversion. In thisconnection it should be remembered that a carrier has a lien on thegoods in respect of hire, and may 'decline to deliver until payment(Wright v. Snell 3). By the rules such a lien is conserved to the CeylonGovernment Railway. It is true that in this case there was a bonafide dispute as to what the hire should be, but that is no reason forholding that the detention until payment of the higher rate amountedto a conversion of the goods. The refusal should be unconditional(Alexander v. Southey 4). Moreover, was it the defendant whodetained the fish? As I said, he is what is called ” parcels clerk.”
It does not appear that he, rather than the station master, has thecustody of the goods^ carried by the railway.. It is not even saidthat he is in charge of the goods shed or store at the station. Itmay well be that an employ£, who has independent control andmanagement of a warehouse, with the authority and duty to delivergoods according to hig discretion, may be liable for unlawful detention,but the defendant is not an employ6 of that description, but is asubordinate officer acting under the immediate supervision andauthority of the station master. The defendant, in fact, would haveviolated hia duty if he delivered the fish to the plaintiff contraryto the orders of his superiors. Although a person who unlawfullyrefuses to give up property of which he has the custody cannot justifythe refusal by saying that he is only agent or servant of another,yet* since in order to make him legally liable- he must be shown to havehad possession, it is material to consider his exact position towardsthe goods in question. A servant who has the care of goods on his
(1898) 1 Q. B. 56.
(1878) 4 Q. B. D. 81.
5 B. <t AH. 350.
5 B. A Aid. 247.
Dk SamfayoJ.
Cassim v*Parent
master’s premises eannot, as a general rule, be said to be in possessionof them (Davies v. Vernon 1)> and nothing has been shown in this casefor concluding that the defendant, occupying the position he did wasin possession of the fish in question. In my opinion the argumentas to conversion of the fish by the defendant cannot be sustainedThe judgment appealed from is set aside, and the plaintiff’s actiondismissed, with costs in both CourtB.
Set aside.