053-NLR-NLR-V-45-PUNCHIBANDA-Appellant-and-RATNAM-Respondent.pdf
198
Funchibanda and Ratnam.
194$Present: Howard C.J. and de Kretser J.
PUNCHIBANDA, Appellant, and RATNAM, Respondent.
61-—-D. C. Kandy, 849.
Wrongfulconversion—Removal ofomnibus—Saleof busby defendant—Measure
of damages.
Plaintiff sued the defendant for the recovery of am omnibus -which thedefendant had sold to himand afterwardsforciblyremovedwhen it was
standing for hire on June 12,1940.
Healso claimed damagesat a certainrate per monthtill possession
xvaa restored to him.
Thedefendant stated in his answer thathe hadsold thebus and the
evidencedisclosed thedate of saleasAugust, 1941.
At the trial plaintiff restricted his claim to one for the value of thevehicle and damages.
The learnedDistrict -Judge gave him judgment,including damages
from date of removal to date of judgment.
Held,that plaintiffwas entitledtodamages onlyfrom the date of
removal uptothe dateofsale.
A
PPEAR from a judgment of the District Judge of Kandy. Thefacts appear from the headnote.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.G., S. R. ITijaya-tilahe and H. W. Jayewardene), for the defendant, appellant.
The learned District Judge has erred in awarding to the plaintiff thesum of Rs. 1,700 on account of loss of profits from the date of the removalof the bus to the date of judgment. The vehicle when it was forciblyremoved from the possession of the plaintiff on January 12, 1940, mustbe treated as a total loss; and the plaintiff having been once awardedthe value ofthevehicle,asassessedbytheplaintiff,cannot be heard
to say that,inadditiontoits value,he is entitledto compensation
for the non-employment of the vehicle which has resulted in loss ofprofits to him. The plaintiff sues for the recovery of the bus and, inthe alternative, for the value of the same and he claims Rs. 475 on thishead- In assessing the value he must he understood to have taken intoaccount theprofit-earning capacityofthevehicle in question. In
valuing a thing all these aspects have to be taken into considerationand especially so in the case of a vehicle. (Mayne on Damages 10th ed.,p. 401.)
HOWARD G.J.—Bunchibanda and Ratnam.
199
[be Ksetser J. :Yes, but the vehicle became a total loss only in
August, 1941, when it was transferred to a third party and till thatdate damages would have accrued to plaintiff.]
The total loss occurred on January 12, 1940, when the bus was forciblyremoved from the possession of the plaintiff; and in arriving at thevalue of the bus the future use of it is a necessary factor. The rule isthat, in the event of a total loss, the plaintiff could not recover anythingmore than the full value of the vehicle and, in the present case, thelearned District Judge has awarded Rs. 475 as the value of the busclaimed by the plaintiff.
I he learned District Judge has misdirected himself by applying to thiscase the principles that would apply in a case' of a partial loss. Thedate of transfer is not the material date. The loss occurred to theplaintiff at the time of theft on January 12, 1940.
T.Kanapathipillai for the plaintiff respondent:The plaintiff is at least
entitled to loss of profits calculated as from the date of removal to thedate of transfer.
Cur. adv. vult.
March 22, 1944. How Aim C.T.—
I have had the advantage of reading the judgment of my brotherde Kretser and, after some hesitation, am of opinion that his conclusionis correct and that an order should be made as directed in his judgment.The matter is governed by English law and a scrutiny of the Englishcases has involved a consideration of the history of the action of trover.There were three distinct methods in which one man may deprive anotherof his property and so be guilty of a conversion and liable in an actionof trover (1) by wrongly taking it, (2) by wrongly detaining it, and(3) by wrongly disposing of it. Corresponding to these three methodsof wrongful deprivation there were originally three distinct forms of actionprovided by the law—(1) trespass de bom's asportatis, for wrongful taking(2) detinue, for wrongful detention, and (3) trover, for wrongful conversion,that is to say disposal. Mere detention was not, therefore, a conversion,in the original sense, but Judges directed juries to find a conversion onproof of demand and refusal without lawful justification. So in Alexanderv. Southeyl, Best J. says:“ An unqualified refusal is almost always
conclusive evidence of a conversion.” This rule establishing troverhad passed its original scope and had become almost concurrent withdetinue. Every person is, therefore, guilty of a Conversion who, withoutlawful justification, takes a* chattel out of the possession of anyone else,with the intention of exercising a permanent or temporary dominionover it. “ Any asportation of a chattel for the use of the defendantor r third person amounts to a conversion ” per Alderson-B. in Fouldes v.Willoughby2.
This historical review has been a necessary preliminary to the questionof the damages that can be awarded the plaintiff in this case. Thedefendant’s original wrong doing, when he forcibly seized the bus onJanuary 12, 1940, gave rise to actions for trespass de bonis asportatis anddetinue. In August, 1941, the selling of the bus by the defendant gaverise to the old action of trover. Damages awarded for conversion are1 (1821) 5 B. & Aid. p. 250.2 (1841) 8 M. <fc W. p. 548.
200
HOWARD C-J-—Punchibarvda and Ratnam.
a mere substitute for possession of the chattel itself and must thereforebe the equivalent of the chattel and amount to the full value of it. Inall action for a conversion the plaintiff may recover, in addition to thevalue of the property, any additional damage, if pleaded, which he may■have sustained by reason of the conversion which is not too remote, videJ3odley v. Reynolds1 the headnote of which is as follows: —
“ In trover, damages may be given in respect of special damage,besides the value of the goods converted, if special damage be laid in'the declaration. As where, in trover, for carpenter’s tools, special■damage was laid in respect of the plaintiff, a carpenter, being hinderedfrom working.”
So also if a carriage, ship or chattel is injured, the sum paid for the hireof another while it is being repaired can be recovered (vide The GretaHolme2, The Mediana3 and Davis v. Ostvell*.) It has been contended byMr. Perera that the disposal of the bus by its sale to a third party sub-sequent to the original wrongful acts of taking and detaining is sufficientSn law to deprive the plaintiff of any damages by way of loss of profitsarising from such detention. Or in other words, the further tortiousact which, under the old law, would havegivenriseto anaction for
trover, deprives the plaintiff of damages towhichhewouldhave been
entitled if the tortious act of the defendant had merely given rise towhat was known, under the old law, as an action for detinue. I cannotassent to such a proposition. The damages for loss of profits up toAugust, 1941, are not too remote. The only authority cited by Mr. Pererain support of his contention was the judgment of Dr. Lushington inThe Columbus5. On behalf of the owners of a vessel sunk as theresult of a collision with The Columbus it was argued that they wereentitled to more than the full value of the vessel lost and were entitledto restitutio in integrum. Or in other wordsthat theyshouldbe replaced
in the same position that they would havebeen,provided the collision
had not occurred. The passage from the judgment di Or. Lushingtonon which Mr. Perera relies for the proposition he has put forward is asfollows : —
“ The only ground which has been suggested in the argument, insupport of such claim, is the principle to which I have just adverted,viz., that the plaintiff ought to be put in the same condition in whichhe stood prior to the collision; and in confirmation of this, the Courthas been referred to cases of partial loss or coinage, where an allowancefor demurrage has been given in addition to the actual amount of thedamage committed. The principle, as applied in cases of partial loss,it appears to me, does not equally apply to the circumstances of thecase before the Court. Let us, for a moment, consider what would bethe effect, in all cases of this kind, of giving anything beyond the fullvalue of the vessel destroyed. Supposing, for instance, that thisvessel had been an East Jndiaman, bound on her outward voyage tothe East Indies, with a valuable cargo on board, for the transportationof which not only would the owners be entitled to a large amount of
i 115 E. R. 1066.
* {1897) A. C. 596.
=> {1900) A. C. 113.
* (1837) 7 C <& p. 804.
5 166 E. R. 922.
DE KEETSEE J.—Punchibanda and Ratnam.
201
freight, but the master might be entitled to considerable contingentprofits from the allowances made to him upon such a voyage. Couldthis Court take upon itself to decide upon the amount of these contin-gencies, and to decree the payment of the same in addition to thepayment of the full value of the ship? I am clearly of opinion thatit could not. The true rule of law in such a case would, I conceive,,be this, viz., to calculate the value of the property destroyed at thetime of the loss, and to pay it to the owners, as a full indemnity to-them for all that may have happened, without entering for a momentinto any other consideration. If the principle to the contrary, con-tended-for by the owners of the smack in this case, were once admitted,I see no limit in its application to the difficulties which would beimposed upon the Court. It would extend to almost endless ramifica-tions, and in every case I might be called upon to determine, not onlythe value of the ship, but the profits to be derived on the voyagein which she might be engaged, and indeed even to those of the returnvoyage, which might be said to have been defeated by the collision.Upon this consideration alone, I should not, I conceive, be justified inadmitting this claim, but I am further borne out in so doing, by thedifference which exists between a total loss, and the case of a partialdamage, viz., that in the later case the amount of the additionalinjury in the loss of the freight is capable of being accurately calculated.It depends upon no contingency; it is, in point of fact, an absoluteloss, and, as such, the owner of the ship upon whom it falls is justlyentitled to compensation.”
Even if this paragraph is legally correct it amounts merely to a rule ofAdmiralty practice rather than an exposition of the general rule. Therule formulated by Dr. Lushington has not, however, been accepted bysubsequent holders of his office. In The Kate1 Sir F. Jeune stated that,the general principle applicable was restitutio in integrum qualified bythe condition that the damage sought to be recovered must not be tooremote. He held the proper measure of damages to be the value of thevessel at the end of her voyage plus the profits lost under the charter-party. This principle was approved by the Court of Appeal in TheRacine2.
de Kretser J.—
Plaintiff sued for the recovery of an omnibus which the defendant hadsold to him and forcibly removed thereafter when it was standing forhire on January 12, 1940: in the alternative he claimed the price of theomnibus. He also claimed damages under various heads, one beingfor Us. 105 a month till possession was restored. The defendant disclosedin his answer that he had sold the vehicle. Evidence at the trial gavethe date as August, 1941. When the case came on for trial the plaintiffrestricted his claim to one for the value of the vehicle and damages.
The learned District Judge gave judgment for plaintiff, inter alia,awarding him Us. 50 a month from the date of removal till the date ofjudgment. On appeal only his finding on this head was challenged, theappellant contending that the plaintiff being content to treat the vehicle
* (1899) P. 165 or 68 L.J.P. 41.
(1906) P. 273 or 75 L.J.P. 83~
202
DB KJtBTSEK J.—Punchibanda and Ratnam.
as a total loss could not also recover damages for loss of profits. Mr. Pererarelied on a passage in Mavne (10th edition) page 401. Mr. Perera’scontention was that the total loss occurred on January 12, 1940. Thisseems to me to be a basic fallacy in his otherwise cogent argument.Till the date of the sale to a third party damages accrued to plaintiffand the damages which had so accrued were not destroyed when thevehicle became a loss in August, 1941, any more than rent due wouldhave been destroyed. The illustration of the vehicle being destroyedby fire, which he gave, brings out the position clearly when properly-applied. Had the vehicle been destroyed by fire in January, 1940, theresulting position would have been quite different from the case of thevehicle being removed in January and destroyed by fire in August, 1941.
The passage in Mayne relied on by the learned trial Judge referred tothe ease of a vessel under repair. This was not such a case. The passagerelied upon by Mr. Perera is really against him when properly understood.The plaintiff's action was what in old English law would be termed anaction, in detinue and the law applicable is stated by Mayne at page 898:
“ In detinue the judgment is to recover the thing itself and damagesfor its detention; or if it cannot be returned, then its value ….
“ Where the verdict cannot be for a return of the goods, on accountof their destruction or previous re-delivery, it will be absolute, in theformer case, for their value and damages; in the latter case, fordamages only.”
The question is as to the date up to which damages will run. To mymind this will vary with circumstances. Where the thing has beendestroyed or made irrecoverable from the defendant after action andbefore decree, then damages can run only up to the date when it becameirrecoverable and so become unprofitable to the plaintiff. The case ofa loss occurring during the pendency of a contract for hire does not arisefor decision in this case. In such a case the rule in Admiralty may be auseful model. At page 401 Mayne is stating the existing rule in Admiraltypractice based on the decision by Sir F. Jeune in the case of The Kate1and Mayne refers in passing to what was for some time considered to bethe rule, viz., that the plaintiff could not recover anything more than thefull value of the vessel in the event of a total loss. In the case of The Kate.the law on the subject was reviewed by Sir F. Juene, President of theCourt. The Chrysolite had collided with The Kate and became a totalloss when on a voyage in ballast under a profitable charter to load at aport in Canada and ship timber to Havre. The Assistant Registrarawarded damages for loss of profit under the charter-party and alsothe value of the vessel at the time she would have completed her voyageunder the charter. On appeal it was contended that the value of thevessel at the time of the collision should have been awarded and no lossof profit under the charter-party. The case of a vessel with cargo onboard was covered by authority and Counsel sought to distinguish sucha case from that of one in ballast under a charter by urging that freightdue or accruing has a definite legal status whereas in the latter casefreight has not accrued and there is only the chance of earning it. Thiscontention was repelled-
1 80 L. T. 423.
Meera Saibo Ahamado Nordeen and Meera Saibo Mohamad Badurdeen.
203
The principle is that restitutio in integrum and the test seems to bewhether the profits could be reasonably said to have accrued. Applyingtherefore that test the plaintiff was entitled to damages till some unspecifieddate in August, 1941.
The decree must be amended by reducing this head of damages(Es. 1,700) to Es. 950, i.e., 19 months’ loss of profits at Es. 50 a month,the total damages awarded being reduced from Es. 2,431 to Es. 1,681.
The appellant has succeeded in part, but lost in the greater part ofhis appeal. There will be no costs of appeal.
Judgment varied.