( 850 )
Present: Mr. Justice Wendt and Mr. Justice Grenier.KULATUNGAM v. SABAPATHI PILLAI et al.
G., Battioaloa, 8,956.
Damage of property leased by fire—Accident—Burden of p/oof—Roman-Dutch Lam.
Where property leased is destroyed or damaged by fire, while inthe occupation of a lessee or tenant, the onus lies on the leaseeor tenant to provo that it was due to accident and not to negligence.Bastian Pillai v. Gabriel1 followed.
HE plaintiff sued .the defendants, who were tenants of a housebelonging to him, for damages for the destruction of. the house
by fire while in the occupation of the defendants. The DistrictJudge dismissed the plaintiff’s action, on the ground that nonegligence had been proved on the part of the defendants.
The plaintiff appealed.
Bawa, for the plaintiff, appellant.
Van Langenberg (with him Balasingham), for the defendants,respondents.
Cur. adv. vult.
October 6, 1908. Wendt J.—
The plaintiff seeks to recover damages for the destruction of hishouse by fire while in the occupation of the defendants, his tenants.There was no direct evidence as to the origin of the fire. “ Whatappears to be the truth, ” says the District Judge, “ is that a littlegirl (how little I cannot say, as the child has not been produced),a sister of the first defendant, was carrying some fire about for somereason or other, and the wind blew a spark on to the roof or thefence near the roof and set fire to it.
The issues framed were as follows: —
Whether the second defendant acted so carelessly and
negligently and without taking due and proper care andprecaution as to let the fire of the kitchen burn down thehouse?
What are the damages?
5 (1892) 1 S'. C. R. 204.
( 351 )
The plaintiff began in the Court below, but it was argued before 1908.■us that the onus of exculpating themselves by showing that the fire Qcto6er *•was due to unavoidable accident lay upon the defendants. The Wendt J.question of onus was an important one, because 1 think it is clearfrom the learned District Judge's judgment that if in his view theburden of proof had laid upon defendants’ shoulders, he would nothave found in their favour as he has dene. See in particular thepassages beginning “ If it had been shown that the fire was caused byneglect, ” “ There is nothing to show second defendant was aware. ”
The incidence of the onus in a case of destruction by fire appearsto have been the subject of controversy among the old jurists.
Grotius (Introduction, J3fe. III., chapter XIX., section 11; Maasdorp395, citing the Digest, Bh. XIX, 2, 9, 3) lays the burden on the lesseeto prove unavoidable accident. In the analogous case of the contractof pledge, the same learned author says that the loss of the pledgeby fire or robbery is considered as due to negligence, unless thedefendant proves the contrary (Bk. 3, 8, 4, and compare Van derKeesel, Thesis 540). Voet (Bk. 9, 2, 20; Simpson, p. 325) takes theopposite view, on the ground that the onus lies by the generalrule on the plaintiff, and that negligence, like fraud, will not bepresumed. His reasoning is not without force, but in the conflictof authority I am disposed to follow the ruling of Withers J., who,in the case of Bastion Pillai v. Gabriel,1 held that the onus layupon defendant to prove that the destruction of the property hiredby him was occasioned by unavoidable accident.
The defendants’ evidence is that the first defendant (the husband)was out of the house at the time of the fire, and that the seconddefendant, his wife, was lying down ill after her recent confinement.
The little girl mentioned by the District Judge was one of twolittle sisters of the first defendant, who were apparently regularinmates of hir. house. First defendant was said to have stated inthe presence of the Yidane that his sister was cooking in a shed, andthe fire spread frem the hearth to the roof. The second defendantis said to have stated that the children had taken fire from the fire-place in the shed and they had accidentally fired the shed. The firstdefendant denied that his sister cooked at all, the servants did itfor them; and no cooking was done in the shed, but in the kitchen.
The second defendant was not called as a witness.
• Upon the evidence I am of opinion that the defendants havenot exculpated themselves by proving that the fire was due to anunavoidable accident. The decree appealed from must thereforebe reversed, and plaintiff will have the costs of appeal and the costsin the Court below. Unless counsel can agree upon the amount ofdamages so as to avoid further expense, the case fnust go back for theassessment of damages in the District Court.
1 (1892) 1 S. C. Ii. 204.
( 852 )
Upon delivery of this judgment counsel agree to Bs. 200, andplaintiff will have judgment accordingly with costs in both Courts.
1 was inclined to think at the argument of this appeal that theonus lay on the plaintiff, ns he had distinctly averred that “ thesecond defendant acted so carelessly and negligently and withouttaking due and proper care and precaution that the fire in a kitchenput up by the defendants without the authority of the plaintiffcaught the roof thereof and burnt and destroyed and otherwisedamaged the old dwelling-house The plaintiff apparently tookthe onus on himself, but it was clearly impossible for him in thecircumstances to prove how the fire originated. All he knew wasthat there was a fire which destroyed the roof of the building whichhe had hired to the defendant. Mr. Bawa for the appellant reliedupon an admission made by the first defendant to the plaintiff inthe presence of the Vidane that his sister was working in a shedwhich the defendant had constructed near the house attached to theverandah, and the fire had spread from the hearth to the roof. Asthe first defendant was admittedly not in the house at the timethe fire occurred, he was evidently saying what was told him onhis return by the other inmates of his house, presumably his wifeand sister.
The District Judge has, more as a matter of surmise than as anactual finding on the evidence, stated that he believed the truthto be that a little girl, first defendant’s sister, was carrying somefire about for some reason or other, the wind blew a spark on to theroof of the fence near the roof, and set fire to it. The origin of thefire was necessarily, therefore, unascertainable upon the evidenceadduced in the Court below. The fire having, however, occurred,the onus was, I think, on the defendants to account for it, whetherit was accidental or the work of an incendiary, if they desiredto exculpate themselves. They were bound to take care of theproperty hired, in the same way as the owner would have takencare of it. As I understand, the Koman-Dutch Law and theauthorities 'cited to us by counsel and referred to by my brotherin his judgment, the question of onus is one which should bedetermined, not by any hard or fast rule, but according to thecircumstances of each particular case. This, I think, is also inaccordance with sound reason and common sense.
In my opinion, the onus in this case clearly lay on the defendantsto account for the fire and the consequent destruction of plaintiff’sproperty in such a way that • no legal liability should attach tothem. They have npt discharged that onus, and 1 agree to theorder proposed by my brother.
KULATUNGAM v. SABAPATHI PILLAI et al