LONDON AND LANCASHIRE FIRE INSURANCE CO. v. P. & O. COMPANY et al

003-NLR-NLR-V-18-LONDON-AND-LANCASHIRE-FIRE-INSURANCE-CO.-v.-P.-&-O.-COMPANY-et-al.pdf


( 13 )[Full Bench}
Present: Pereira J., Ennis J., and De Spoipayo, A.J.
4,
LONDON AND LANCASHIBE FIRE INSURANCE CO. v.P. & 0. COMPANY et of.
78—D. C. Colombo, 37,533.
Joinder of parties—Alternativeclaimagainst toe defendants—Joinderof
causes of action—Civil Procedure Code, ss. 14 and 96.
Plaintiff,aninsurance company, sued the twodefendant
companies to recover the value of sugar lost in theColombo
harbour consequent on acollision betweenthebarge belongingto
second defendant companyandthe steamer belongingto first
defendant company, fromwhichthe sugarwastransferred' tobe
conveyed to shore.
The plaint averted—
9th paragraph—The lossof thesaid 310bagsof sugar wasdue
to the negligenceof theservants of thedefendants jointlyor
to tiie negligence of the servants of one or other of the defend*ants,andif thesaid losswas not caused bythe joint negligence
ofthe defendants*servants,theplaintiffcompany,being
unable to discover which of the defendants was liable for thesaid loss, sues them in the alternative.
10thparagraph.—As aseparateandalternativecause ofaction
againstthesecond defendant company,theplaintiffcompany
saysthat the seconddefendant company as a common
carrier received the said 810 bags of sugar to be carried fromthe ss. Delta to the shore, and that the said bags were lost inthe course of transit while in the second defendant's custody,andthe second defendant wrongfully failedto deliver the
same.
Held (per Pereiba J. and De. Sahpato A.J.), that the "two defend*ants were rightly joined in respect of the first cause of action.
Held, further (perPbbbxbaJ. and Eroxs J., dissentientsDb
SahpatoA.J.), that thejoinder inthisaction ofthe claimagainst
thesecond defendantcompanyona differentcause of action (10th
paragraph) was not a misjoinder of causes of action.
The Court may in its discretion order a separate trial of theadditional claim on the further cause of action.
Febbiba J. obiter.—An objectionto anaction by a defendant
onthe ground of misjoinderornon-joinderof parties is notto
be taken by way of answer. It should be taken by motion orapplication at the earliest opportunity.
T
HE facts are set out in the judgment of the Acting Additional -District Judge (Mr. K. Balasingham): —
One Soolemanjee insured with the plaintiff company for a sum of5,000 dollars 500 bags of sugar shipped on board the ss. Delta belongingto the Peninsular and Oriental Company, Limited, who is the first
1914,
1*14.
London a idLancashireFire
InsuranceCo.9. P. dt 0.Company
( 16 )
defendants ii. this case. 'On the arrival of the ss. Delta at Colombo810 bogs of sugar were transferred to a barge belonging to the CeylonWharfage Company, who is the second defendant in this case, to beconveyed from the steamer to the shore. The barge collided with thess. Delta and was sunk and the bags of sugar were lost. The plaintiffcompany paid the value of the sugar in terms of the marine insurancepolicy ana got an assignment of the rights of the consignee. Theplaintiff company seek in this action to recover from the defendantsthe value of the 810 bags of sugar. The case is now before me for thedecision of the issues as to misjoinder of parties and causes of action,namely, issues 1, 2, 8, and-3A.
The cause of action against the defendants is set out in the plaiut-in those terms in paragraph 9:—
"9. The loss of the said 310 bags of sugar was due to the negli-gence of the servants of the defendants jointly or to thenegligence of the servants of one or other of the defendants,and if the said loss was not caused by the joint negligenceof the defendants’ servants, the plaintiff company, beingunable to discover which of the defendants was liable forthe said loss, sues them in the alternative. ”
The cause of action set out in the paragraph is one arising out of atort, as stated by Mr. Hayley, the counsel for the plaintiff company.
A separate and alternative cause of action is pleaded’ against* thesecond defendant in these terms in paragraph 10: —
"10. As a separate and alternative cause of action against thesecond defendant company, the plaintiff company says thesecond defendant company as a common carrier receivedthe said 310 bags of sugar to be carried from the ss. Delhito the shore, and that the said bags were lost in the courseof transit while in the second defendant's custody, and thesecond defendant wrongfully failed to deliver the same.”
The cause of action set out in paragraph 9 of the plaint is based on atort. The cause of action set out in paragraph 10 of the plaint is basedon a contract. It is alleged that second defendant, who is a commoncarrier, had not delivered the bags of sugar to plaintiff. It is clear thatthe causes of action set out in paragraphs 9 and 10, whether based oncontract or tort, are not the same. The plaint itself says in paragraph10 that the cause of action set out in it is ” a separate and alternativecause of action.”
Gower v. Goiddrige 1 illustrates the principle that if you have a causeoi action against A and B for a tort X, and you have quite a separatecause of action against B for the tort Y, then you cannot in one actionbring claims against A and B in respect of both torts X and Y. (PerRoiner L.J. in Frankenburg v. Great Horseless Car Co?)
Applying the same principle here, it is clear that plaintiff cannot joinin one action the cause of actions set out in paragraphs 9 and 10 of theplaint. It may be that in England, after the amendment of the Buiesand Orders in 1896, that separate causes of action, some of which affectsome defendants and some all defendants, may be joined in one actionif they arise out of the same transaction or series of transactions. Butas our law stands at present, such a joinder of causes of action is not
1 (IS9S) 1 Q. D. SOS.a (290ft) 1 Q. B. M.
( 17 )
proper. Even in England “ distinct causes of actioi^against differentdefendants quite unconnected and not involving any common questionof law or fact cannot safely be joined in one action. ”
Gan the plaintiff sue both the defendants in one action on the causeor causes of action set out in paragraph 9 ? It is clear .that- on thefacts set out in paragraph 9 of the plaint plaintiff can bring one actionagainst the two defendants in England.
1914.
London andLancashireFire
insuraneeCo.
v. P. 4 O.t'ovipan*/
But our Procedure Code is different from the English Rules andOrders in respect of the joinder of parties and causes of action.
Order XVI., rule 1, originally stood as follows:“ All Hie persons
may be joined as plaintiffs in whom the right to any relief claimed isalleged to exist, whether jointly, severally, or in the alternative/’
But in 1896 it was amended, and it now reads:“ All persons may
be joined in one action as plaintiffs in whom any right to relief in respectof or arising out of the same transaction or series of transactions isalleged to exist, whether jointly, severally, or in the alternative.”
Rule 4, winch correspqnds to section 14 of ouv Code (dealing withthe joinder of defendants), stands as it originally did, but it was pointedout in (1910) 2 K. B., at page 367, that the alteration of rule 1 affectedthe scope of rule 4 as well. See also Annual Practice, 1914, page 217.
Section 14 of the Civil Procedure Code enacts: —
All persons xnay be joined as defendants against whom the rightto any relief is alleged to exist, whether jointly, severally,or in the alternative, iu respect of the same cause of action,and judgment may be given against such one or more ofthe defendants as may be found to be liable according totheir respective liabilities without any amendment.
In the amended English Rule and in the new Indian Code (Order 1,rule 3) the words ” in respect of the same transaction ” have beenespecially inserted to enable actions of this kind to be brought. Thewords of the old Indian Act (in respect of the same matter) and of theold English Rule (” the .right to any relief ”), though somewhat widerthan the words of section 14 of our Code, were yet found to be toonarrow to admit actions of this kind.
In Buttock v. London Great Omnibus Co.1 the facts w ere almost similarto the facts set out in paragraph 9 of the plaint. Plaintiff in that case,who was a passenger in a vehicle, sued two defendants—one the ownerof the vehicle in which he was driving, and the other the owner ofanother vehicle—to recover, jointly or in the alternative, damagesbased on injuries caused by a collision of the two vehicles. The actionwas held to have been properly brought by reason of the amendment ofOrder XVL, which enabled not only the joinder of parties, but also ofcauses of action. (See also 9 N. L. R. 68,16 N. L. R. 232, and 8adler v.Great Western Railway Co.2)
What is the cause of action set out in paragraph 9 of the plaint?It is tiie negligence of first defendant or of second defendant or of both.The collision is not the cause of action, nor is the loss sustained by theconsignee the cause of action. It is true, as pointed out by MoncreiffJ. in 4 N. L. R. (at page 368), that we must- interpret the term, “causeof action” by the definition of the term in our Code. Cause of actionIs defined in section 5 “ as the wrong for the prevention or redress of
* (im) 1 K. B. 264.* (1396) A. C. 460.
( M )
1914. which an action may be brought, and includes …. the infliction of
.* an affirmative injury. ” The first defendant’s negligence perhaps
XaocMftto resulted in the infliction of an injury, and the second defendant’sFire negligence in the infliction of another, though the resulting loss cannot
^TTo0- k® aPP0*^011®**
Coh'pwiy What is the “ wrong “ complained of ? The first defendant's negli-gent act and the second defendant’s negligent act. The loss sustainedby the plaintiff is not the wrong “ or the ** infliction of the affirmativeinjury. In this case, though the damage sustained by the plaintiffmay be one, the causes of action which have led to the damage are two,committed by two distinct persons (see Thomson v. London Council *).If the two defendants had acted in c*mcert to cause-damage to theplaintiff, he can bring one action against the two on the facts set out-in paragraph 9.
But it cannot possibly be contended that the two defendants wereacting in concert in this case. No doubt the word “ jointly v> is usedin paragraph 9 of the plaint, but it is clear from the context that“ jointly ” is not used there in the sense of acting in concert.
It may also be noted that there is no provision in our Code similarto Order XVI., rule 7, of the English Buies and Orders. Even if thatrule (7) can be* read into section 14 of our Code, it is doubtful if thatrule would apply to the facts of this case to justify the joinder of thecauses of action set out in paragraphs 9 and 10. For, as Mr. Schneider,who appeared for the first defendant, pointed out, the authority quotedby Mr. Hayley himself (4 Hahbury 95) shows that the "plaintiff hasno doubt as to the liability of the second defendant as a commoncarrier. It is only when “ plaintiff is in doubt as to the person fromwhom he is entitled to redress “ he may ask the Court to adjudicatewhich, if any, of .the defendants is liable.
I hold that there is a misjoinder of parties and causes of action.
The plaintiff must elect between the defendants. The name of the
other defendant should be struck out and the plaint amended. Ifplaintiff elects to proceed against the second defendant (WharfageCompany), the causes of action set out in paragraphs 9 and 10 may bejoined.
I order the plaintiff'to pay the costs of the party whose name is tobe struck out. The costs of the other party will abide the event.
Hayley, for plaintiff, appellant.
Bawa, K.C., for first defendant, respondent.
Santarawick rente, for second defendant, respondent.
Cur. adv. vult.
October 8, 1914. De Sampayo A.J.—
His Lordship set out paragraphs 9 and 10 of the plaint, andcontinued:—
The defendants took exception to the constitution of the action,and two questions arose for consideration: (1) Whether the twodefendants were rightly joined in respect of the first cause of action;and (2) whether it was within the competence of the plaintiff to
i (1889) 1 Q. B. 840, at p. 844.
( 1» )
I
1 ■**
make theagainst the second defendant aloxie on the second
cause of action. There is no difficulty in holding that the DistrictJudge was wrong in his opinion that Hie action was badly constitutedso far as the first cause of action is concerned. That cause of actionis the loss of the goods by reason of the negligence of both thedefendants jointly or of the negligence of one or other of them, andsection 14 of the Civil Procedure Code quite justifies the joinder ofthe two defendants and the claim of relief in the alternative. Itherefore think the dismissal of the plaintiff's action as regards thefirst cause of action cannot be sustained.
But on the question as to the regularity of- the joinder of thesecond cause of action, I regret I am unable to take the same viewas my learned brothers. That cause of action is founded upon thealleged liability of the second defendant as a common carrier,whether there was negligence or not, and is distinct and separatefrom that alleged against both the defendants in the 9th paragraphof the plaint. Can it be joined in the same action? That questiondepends upon the construction to be placed on section 36 of theCode. Section 14, already referred to, is concerned only with thematter of joinder of parties, and leaves untouched the matter ofjoinder of causes of action, which is dealt with by section 36. Thelatter section is preceded by a provision (section 35, sub-section (1)}that in au action relating to immovable property no other claim, onany cause of action, shall be made except with the leave of the Court,except in certain specified cases, and by a further provision (section35, sub-section. (2)) that no claim by or against an executor or adminis-trator or heir as such shall be joined with claims by or against himpersonally. Then, section 36 enacts that, 41 subject to the rulescontained in .the last section, the plaintiff may unite in the sameaction several causes of action against the same defendant or thesame defendants jointly." I think it is correct to say that thegeneral rule of law is that a plaintiff must bring one action for onecause of action, except so far &9 it is otherwise provided. Now,when section 36 permitted the joinder of several eauses of action" against the same defendant or the same defendants jointly," didit also permit a plaintiff to unite distinct causes of. action agaiuatseparate, defendants ? To my mind it is impossible to say so. Itis clear that the section only recognises the joinder of several causesof action against the defendant if there be one defendant, or againstthe defendants jointly if there be several defendants. This seemsto be the construction put up by the Courts of India on the correspond-ing section 45 of the old Indiem Procedure Code. The leading case
on the subject is Narasingh Das v. Mangal Dubey.1 See alsoMuthappa Ohetty v. Muthu Palani CheUyf and the (moments on therules in question in Ameer Ali and Woodroffe's Civil Procedure,pp. 581 and 589. The result of all Hie authorities is that joint
1 L L. R. 5. All. m.* I. L. R. 2? Msd. SO.
me.
Db S&spayO
A.j.
London andLanettohire
JTire
InsurctnceCo.e. p, <6 O.Company
7
( 20 )
1914.
DbSakpayo
A.J.
London andLancashireFirs
InsuranceCo.
v. P. & O.Company
interest is a condition precedent to the joinder of several causes ofaction against several defendants, the test being whether there iscommunity of interest in the causes to be determined. In MullickKef ait v. Sheo Pershad1 it was held that there was no provision in theIndian Procedure Code allowing distinct causes of action againstdistinct sets of defendants (that is to say, causes of action in whichthe defendants are not all jointly interested) to be united in the sameaction. By reason of the example given under section 35 of ourCivil Procedure Code there is one instance with us in which twocauses of action against two separate defendants may be joined,but that is confined to the case of a suit relating to immovable pro-perty and to the causes therein specified. But this does not justifythe reading of section 36 in any other sense than that above indicated.That section and the two following sections no doubt proceed toprovide that in case of inconvenience the Court may order separatetrials of the several causes of action, or may order any of such causesof action to be excluded, but that pre-supposes that the severalcauses of action have, in the first instance, been properly joined.Nor do the English rules of procedure, so much wider as they arethan our rules, afford any support to the joinder of the two causesof action in this case. Order XVIII., rule 1, enacts that, subjectto the other rules of that Order, the plaintiff may unite in the sameaction several causes of action. It has however been held as settledlaw that two separate causes of action cannot be charged againsttwo defendants in one action. This is the principle of the decisionin Sadler v. Great Western Railway Company.* In Burstatt v. Beyfus 3it is laid down that, where the cause of action against one defendantis totally disconnected with that.against the other defendants, exceptso far as it arises out of any incident in the same transaction, thereis a misjoinder, and that it is not the case contemplated by Order,XVni., rule 1. This decision seems to me exactly to fit thecircumstances of this case.
I would set aside the judgment appealed against and send the caseback for trial of the first cause of action, excluding the second causeof action and amending the plaint accordingly, if necessary.
There should be no order as to costs in either Court.
Pereira J.—
His Lordship set out the facts, and continued: —
The argument in appeal was practically confined to the questionsraised by the defendants in their answers as to misjoinder of partiesand causes of action. The plaintiff company claims the right torecover from the one defendant or the other in the alternative, andthis right is> based on the provision of section 14 of the Civil
> L. a. 23 Cal 820.* L. R. 1 C. A. 460.
* L. R. 26 €h. D. 36.
( 21 )
ft-ocedure Code, which provides that aD persons may be joined *****as defendants against whom the right to any relief is alleged to PbebebaJ.exist, whether jointly, severally, or in the alternative, in respect ofthe same cause of action. The plaintiffs aver a further and Lancashirespecial cause of action, based, as I understand it, on contractagainst the second defendant company. In the respective answers v. P, <f? O.of the two defendant companies, objection, as already observed, Cfaw*xmywas taken to .the plaintiff's claim on the ground of the misjoinder<of defendants and causes of action, and issues Nos. 1, 2, 3, and 3awere framed on this objection. Now, it seems to me that anobjection on the ground of the misjoinder oi non:-joinder of parties,is not a defence to the plaintiffs’ claim to be taken by way ofanswer. Section 22 of the Civil Procedure Code enacts, that such anobjection should be taken at the earliest possible opportunity, andif it were not so taken, it should be deemed to have been waived bythe defendants. The objection should have been taken by way ofa motion or application to put the plaintiffs to their choice as to thename of the defendant to be struck off the record and of the defend-ant to be retained. Clearly the answer is no place for such anobjection. Section 75 makes provision as to what an answer shouldcontain. It provides that it should contain, inter alia, a statementadmitting or denying the several averments of the plaint, andsetting forth in detail plainly and concisely the matters of facts andlaw and the circumstances of the case upon which the defendantmeans to rely for his defence. There is no averment in the plaintas to joinder of parties, and misjoinder or nonjoinder is no defenceas a matter of law or of fact to the claim made by the plaintiffs.
Anyway, under section 146 of the Code the answer has no place inthe framing of issues, and no issue whatever should have been framedon the question of misjoinder. However, all the parties appearto have acquiesced in the irregular proceeding in the Court below,and I shall therefore confine myself to the points actually pressedin appeal. The two questions are: (1) Whether the plaintiffs had aright, under section 14 of the Code, to make a claim against thefirst defendant company, and to make the same claim in the alter-native against the second defendant company; and (2) whether theplaintiffs had any right, under section 36 of the Code, to declare on anadditional cause of action against the second defendant company.
I find no difficulty whatever in answering both these questions in theaffirmative. As regards the first, the position taken up by theplaintiffs is ibis. Our cause of action is the infliction of an affirm-ative injury on us by either of the defendant companies by reasonof its negligence. We cannot say which company inflicted theinjury. It is for the Court to determine that matter. We claimin the alternative. Clearly, such a claim can be made undersection 14 of the Civil Procedure Code. Anyway, it is not necessaryto labour the point, because the question involved has already been
( S2 )
1914.
Foitnu J.
London andLancashirei’iro
Intntr.mc&Co.o.P. ib O,Company
authoritatively decided by this Court in the case of Aitken, SpenceA Co. v. The Ceylon- Wharfage Company and the Bibby SteamshipCompany.1 With regard to the second question, I have found itdifficult to understand tire argument addressed to us. Section 86of the Civil Procedure Code provides that the plaintiff may unitein the same Action several causes of action against the same defend-ant or the same defendants jointly. It has been said that the word“ same " here refers to a person-who has already been made a defend-ant >Q An action. . I do not think so. The word has to be understoodwith reference to the expression “ several causes of action.” It ismerely intended to imply the sameness, so to say, of the defendantson the different causes of action referred to in the section. In thepresent case the piuintiffs have two causes of action against thesecond defendant company. They, therefore, have two causes ofaction against the same defendant, and if in place of the seconddefendant company there had been a group of individuals named inthe plaint, it could have'been said that the plaintiffs had two causesof action againBt the same defendants, jointly. So that section 36lias uo reference to any particular number of defendants alreadynamed in a particular action. It stands by itself, and may beapplied to any one or more defendants in an action who are soughtto be made liable alternatively to any other defendant in the sameaction. In other words section 14 and section 36 of the CivilProcedure Code may. be combined and allowed simultaneousoperation in any case. There is no doubt as to the possibility ofsuch a proceeding resulting in great inconvenience, although I havenot been able .to perceive the possibility of inconvenience in thepresent case so far; but there is a safeguard against inconveniencein the latter part of section 36, which provides that the Court mayin its discretion order u separate trial of any cause of action declaredupon under that section, or make such other order as may be neces-sary or expedient for the separate disposal thereof, that is to say,may even refer the plaintiff to a separate action..
For the reasons given above I would set aside the order appealedfrom and allow the appeal With costs, without prejudice, of course,to the right of the District Judge to make order under the concludingportion of paragraph 2 of section 86, if in the course of the trial hefind such order necessary or expedient.
Ennis J.—
In this case objection was taken that the plaintiff's claim in thealternative against the first and second defendants was a misjoinderof defendants, and the joinder of a claim against the second defendanton a different cause of action was a misjoinder of causes of aetion.The only point reserved for the Eull Court was the second. In my
■ (1HW) 4 N. L. R. SOS.
( 23 )
opinion section 86 of the Code of Civil Procedure permits of ajoinder of causes of action in the circumstances of this case. Thatsection lays down the general rule with regard to joinder of causesof action, and is subject to the exceptions mentioned in section 36.It provides that separate causes of action may be united against“ the same defendant or the same defendants jointly/' It is•argued for the appellants that this rule applies only when all (thedefendants are common to both causes of action, and that the rule■does not apply where one or more of several defendants in one causeof action do not appear as defendants in the other. Indian caseshave been cited in support of this contention, but in my opinionthese eases are not in point, because the Indian Code does notcontain the illustration found in section 36 of the Ceylon Code. TheCeylon Code must be read in the light of that illustration, which isan instance of a joinder of causes of action with the leave of theCourt where only one defendant is common to both actions. Theleave of the Court in section 86 is required in order that the exceptionfound in that section to the rule laid down in section 36 may be set-aside. It is not, in my opinion, intended that the Court should grantleave to join causes of action in a manner repugnant to section 36,and therefore section 36 should be read with the wider interpretation,so that the illustration in section 35 could not be repugnant to theprinciple of section 36 in any event. I am convinced that this is thelight construction to be placed on section 36 because of the rule insection .33, which provides that every regular action shall, as far aspracticable, be so framed as to afford ground for a final decisionupon the subjects (note, not causes of action) in dispute.
I see no reason to restrict the operation of the example in section35 to the particular case therein contemplated. The example wasfollowed with approval, in the Ceylon case Fernando Waa$,x andis in accord with the practice in England.
I agree with the order proposed by my brother Pereira.
Set aside. I
1914.
Ehhw J.
London anriJjcmoaskiri'Fire
Inourancetc.
V. P. ds O.Company
I 9 8> 0. ®r m.