056-NLR-NLR-V-40-MIGUEL-APPUHAMY-v.-APPUHAMY.pdf
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Miguel Appuhamy v. Appuhamy.
1938Present: de Kretser J.
MIGUEL APPUHAMY v. APPUHAMY.
235—C. R. Dandagamuwa, 178.
Tort-feasors—Joint assault and housebreakings—Action against one—Baragainst further claim on the same cause of action.
Where plaintiff has sued one of several joint-tort-feasors for therecovery of a share of the damage caused to him and has obtained judg-ment against him, he cannot maintain an action against any of the othersupon the same cause of action.
I
N Courts of Requests action 188 plaintiff sued one of severalpersons, who broke into his house, assaulted him and his mistress
and stole his jewellery, tb recover a sum of Rs. 300 which he alleged waspart of his damage. He sued the present defendant at the same time torecover Rs. 300. After decree had been entered in C. R. 188 thedefendant amended his answer and pleaded that the plaintiff’s failureto sue the other tort-feasors amounted to a release of the other tort-feasorsand absolved him from liability.
The Commissioner of Requests held that the decree in C. R. 188 was abar to the present action.
i 3 B. W. C. C. 368.
DE KRETSER J.—Miguel Appuhamy. v. Appuhamy.
201
A. Rajapakse "(with him Kariapper), tor plaintiff, appellant.—TheCommissioner is wrong in holding that the English law applies. It is theRoman-Dutch law that governs the matter.
Joint tort-feasors are each and all liable in soltdum. The injuredperson may sue anyone of them for the full amount of damage, or he maysue them all together and enforce his judgment in soltdum. But if herecovers the full amount from one, he cannot sue the others. Naude v.Merrier Nathan on Torts (1921 edition), pp. 42, 43.
The option is given to the plaintiff to sue one or several joint tort-feasors. If it can be proved that one was responsible for part of thedamage, and another for the rest of the damage, he may divide theliability and sue them in separate actions each for his proportionateliability. It is only payment of the whole amount by one—not merelya judgment for the whole amount—that extinguishes the obligation andreleases the others. Grek v. Jankelowitz *.
The reason is that it is a compensatory action. Me Kerron on Torts,pp. 71 to 72.
Counsel also referred to Voet 9.2.12; Pothier, vol. I, pp. 147-155 and264-277 ; Gooneratne v. Porolis and Aiyampillai v. Kurukkal4.
L. J. Croos .Brer a, for the defendant, respondent.—The amount
due is a joint one •udgment against one releases the others. Theplaintiff must be deemed to have waived his right to proceed againstthe others. The plaintiff cannot divide his cause of action. The localcases cited have no application, and the matter has not been specificallydecided in Ceylon. The dictum in Grek v. Jankelowitz (supra) is obiter,and should not be followed. In the matter of procedure Roman-Dutchlaw has no application. A consideration of sections 14 and 34 of the CivilProcedure Code shows that this action is not maintainable.
If it is a Casus omissus, then the English law should be followed. Theprinciple in Richardson v. Mellish’ should be followed. Counsel alsocited Supraya Reddiar v. Mohamed *; and Mack v. Perera ’.
Cur. adv. vult.
June 16, 1938. de Kretser J.—
Plaintiff’s house was broken into, money and jewellery stolen, andplaintiff and his mistress injured. As a result he claims to have suffereddamage to the extent of Rs. 900. •
Five persons were convicted in consequence and sentenced to differentterms of imprisonment.
Plaintiff sued one of them in C. R. 188 for Rs. 300 and obtainedjudgment against him.
Judging by the numbers, he sued the present defendant at the sametime, also to recover Rs. 300. He alleged that Rs. 300 represented partof his damages.
11917 (,S.A.) A.D. 32 at pp. 38 and 39.* 16 N. L. R. 231.
a 1918 (S.A.) C. P. 140 at 1*3; 1 C. L. Rec. 58.,5 2 Bing 240.
a 4 N. L. R. 318.« 17 0. L. R. 136.
• 33 N. L. R. 179.
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DE KRETSER J.—Miguel Appuhamy v. Appuhamy.
After decree had been entered in C. R. 188 the defendant amendedhis answer and pleaded that the plaintiff's failure to sue the other tort- .feasors amounted to a release of the defendant and absolved him fromliability. He also pleaded that the decree in C. R. 188 was a bar toany further action in this case.
Issues were framed on these lines.
The learned Commissioner held that he was obliged to .follow theEnglish law and that against two or more joint tort-feasors there wasonly one cause of action and, if that cause of action were released ormerged in a judgment, no second action could be brought.
It is conceded that it is the Roman-Dutch law which applies regardingthe liability of joint tort-feasors but Mr. Dabrera urges that a question ofprocedure is involved and that on this question English law should befollowed.
In Nathan on Torts (1921 ed.) at page 42 will be found a statement ofthe law on the subject.
He says, “Where two or more persons are jointly concerned in doingan unlawful act, they are jointly and severally liable in solidum for theconsequences, and the plaintiff may sue any one of such tort-feasors whomhe pleases. The law recognizes no partnership in the commission of atort for, says Voet, partnership is concerned with lawful matters, and notwith unlawful acts. Consequently, if two or more persons act in concertin committing a tort, each is regarded as acting on his own account, andis individually liable; and, if judgment be given against one of severalpersons Who together were guilty of a tort, it would be against the policy
of the law'for him to recover a contribution from the others
And, according to the Digest, if an action be instituted against one ofseveral joint tort-feasors, the others are not discharged . . . . As ageneral rule a plaintiff has a right to bring separate actions against two ormore joint tort-feasors.
Pothier (vol. 1 p. 150) discusses the effect of solidity between severaldebtors and says, “ Observe, that the choice which the creditor makes ofone of the debtors against whom he exercises his pursuits, does notliberate the others until he is paid. He may discontinue his pursuitsagainst the first, and proceed against the others; or if he pleases he mayproceed against them all at the same time ”.
In the South African case of Grek v. Jarikelowitz1, Juta J.A. said,“ But the points raised in the present case are whether the personassaulted can sue each tort-feaser concurrently for the particular andindividual damage caused to him by such defendants, or whether havingbegun the action against Meirowitz, one tort-feasor, the plaintiff is de-barred from suing Grek, another tort-feasor, until the first action hasbeen determined; by which I understand is meant, until the plaintiff hasproceeded against Meirowitz, not only to judgment but to execution.Now in the case of persons liable in solidum where the liability arises fromcontractual obligations, each is liable individually for the whole amount,so that payment and not merely a judgment against him of the whole.^mriount extinguishes the obligation and releases the other party. The‘ plaintiff cannot be forced to divide his actions against the defendants,
» 1 C. L. Rec. 58.
DE KRETSER J.—Miguel Appuhamy v. Appuhamy.
203
but he can do so and sue each defendant for a proportionate share. Thisis clear from Voet 452.4. I cannot find any authority which appliesthese principles to the case of the liability in solidum arising from a jointassault. But on principle I cannot see why a plaintiff ’ should not sueeach tort-feasor for the damages which arise from his undivided share inthe assault”. He goes on to say that should the one tort-feasor pay allthe damages sustained by the plaintiff in the first case before judgmentis delivered in the second case such payment might be pleaded by way ofan amended plea, and should payment be made after judgment is deliveredexecution could be stayed in the second case.
He was dealing with a case of assault.
In Nande and Don Plessis v. Merrier Innes C.J. said, “As regardsprocedure, a complainant may .sue any one of those who jointly injuredhim for the full damage caused by the injury. Or he may bring hisaction against all of them as co-defendants, and enforce his judgment insolidum ”.
From these and other authorities to the same effect we have no difficultyin deciding that the liability of the five persons concerned in the burglarywas joint and several, and that each was liable in solidum. The questionnow to be considex d is one of procedure.
It is agreed that c.- rt-feasors may be sued together. . That would be
justified by section 15 or me Civil Procedure Code.
1 suppose the real reason why that convenient form of procedure wasnot adopted in this case is that there is only a Court of Requests atDandagamuwa and plaintiff found if convenient to sue there.
It is conceded that a single tort-feasor may be selected or some out ofmany.
The question is whether having selected one or some and havingproceeded to judgment the plaintiff may then maintain an action againstany one or more of the others.
The question is not free from difficulty. Plaintiff’s right is not neces-sarily co-extensive with the liability of the defendants. The passagefrom Nathan indicates that separate actions may be brought but does notsay what happens when judgment is obtained in one nor does it contem-plate division of the claim. Pothier says that it is only payment andnot a judgment which terminates the obligation.
In Grek v. Jankelowitz (supra) the plea was that one action had to beterminated and execution exhausted before another was begun. Juta J.A.thought that the second could be brought and tha’t the claim could beidivided in he case of an action based on assault. In the case of an assaultindividual liability is ascertainable and when the action is only compen-satory and not penal in character such division was allowed even in theRoman law.<
Being a. matter of procedure one has to .see how the question is affectedby the Civil Procedure Code, and first must be settled the questionwhether the plaintiff has only one cause of action or different causes ofaction against each wrongdoer. I think it is clear' that there is one*-There may be a class of case in which each individual’s liability maj 1
1 South African Law Reports, Appellate Division (1917-32).
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DE KRETSER J.—Miguel Appuhamy v. Appuhamy.
asecertainable and where the cause of action against each may thereforebe different but in the present case the cause of action is the joint act ofburglars.
That there is only one cause of action seems to be the view taken bythe English law, which holds that a judgment against one is itself, andwithout execution, a sufficient bar to an action against another jointtort-feasor because transit in rem judicatam, the cause of action is changedinto matter of record—cf. King v. HoarsBrinamead v. Harrison *.
Our Code defines “ cause of action It is the wrong for the redress ofwhich an action may be brought and includes the infliction of an affir-mative injury. That makes it clear that plaintiff had one cause ofaction. That cause of action he may enforce against all the wrongdoersor against one or more of them. Having done, so and having obtainedjudgment can he maintain any further action? If the reasoning of theEnglish cases be accepted, and there seems to be no reason why it shouldnot be, his cause of action is exhausted and he cannot therefore proceed.
This view, accords with the maxim of the law Reipublicae interest ut sitfinis litium, which we find embodied in section 33 of our Civil ProcedureCode. That section says, “ Every regular action shall, as far as practi-cable, be so framed as to afford ground for a final decision upon thesubjects in dispute, and so as to prevent further litigation concerningthem ”.
It is followed by section 34 which says: —
“ Every action shall include the whole of the claim which the plaintiffis entitled to make in respect of the cause of action; but a plaintiff mayrelinquish any portion of his claim in order to bring the action withinthe jurisdiction of any Court.
“ If a plaintiff omits to sue in respect of, or intentionally relinquishesany portion of his claim, he shall not afterwards sue in respect of theportion so omitted or relinquished”.
This section is very wide in its scope and emphatic in its language. Itembodies the policy of our law. It clearly refuses to recognize divisionof a claim.
Broughton in his commentary on the' corresponding section of theIndian Code of 1882, says that the cases bearing on the subject havearisen generally where it was sought to divide one action into several forthe purpose of giving jurisdiction to the County Courts and they affordgood illustrations of the principle involved in this section.
Best C.J. said in Richardson v. Hellish *, “ When the cause of an actionis complete, when the whole thing has but one neck, and that neck hasbeen cut off by the defendant, it would be most mischievous to say—itwould, be increasing litigation to say, you shall be driven to bring asecond, a third, or a fourth action for the recovery of your damages
In Mack v. Perera Akbar J. states, without reference to any authority,“ any judgment against a joint tort-feasor for damages suffered by theplaintiff would operate as an accord and satisfaction and would dischargeother joint-feasors from liability ”.
*1$ Meeson & Welby p. 494.
a {1872) 41 L. J. C. P. 190.
4 2 Bingham 240.
*33 K. L. B. 179/
Somasun de-ram v. Kotalawala.
205
It seems to me therefore that whatever may have been the procedureunder the Roman or the Roman-Dutch law our own Code of Procedureprevents this second action from proceeding and it would seem that ourlaw is on the same lines as the English law in this respect.
On grounds of convenience too a multiplicity of actions is to be deplored.Take the present plaintiffs' conduct. He claimed Rs. 300 from onewrongdoer and now claims Rs. 300 from another. There is no. statementin the plaint as to what his total damages were but it was later taken tobe Rs. 900. Had he been free to sue he might have gone on suing eachof the five for Rs. 300. .Had his damages to be estimated in the first caseit would mean that the trial would be concerned with a claim for Rs. 900.Even if Rs. 300.were clearly due in that case it would not be so clearlydue in the following cases. Besides the quantum, of damages might bedifferently estimated by different Judges.
I think the decree entered in this case is right and I therefore dismissthis appeal with costs.
Appeal dismissed.