024-NLR-NLR-V-43-WIJEYRATNE-v.-PILLAI.pdf
1941
Wijeyratne v. Pillai.
105
Present: Moseley S.P.J. and Keuneman J.
WIJEYRATNE v. PILLAI.
83—-D. C. Balapitiya, 73.
Master and servant—Claim for damages arising from motor collision—Lorrydriven by person not in owner’s employment—Liability of owner—CiuilProcedure Code, s. 772.
Plaintiff sued the defendant for damages for injuries sustained byplaintiff as the result of a collision between' a bus in which the plaintiffwas a passenger and a motor lorry owned by defendant and drivenat the time of the collision by S, negligently and without proper care.
1 33 Calc. 92S.
106
MOSELEY J.—Wijeyratne v. Piltai.
It was found by the Judge that S was not the defendant’s driver andthat on the day in question, F, the regular driver, was driving the lorrywhen it set out on its journey and that at the time of collision the lorrywas being driven by S.
There was no evidence that S was an incompetent driver or that thehanding over of the lorry by F to S was the effective cause of the collision.
Held, that the defendant was not liable for the negligence of S.
Where there is an appeal against a decree, objection may be taken bythe respondent under section 772 of the Civil Procedure Code to anythingappealable in the decree out of which the appeal arises.
The words “ any part of a decree ” mean the whole of the decree or anypart thereof.
British Ceylon Corporation, Ltd. v. The United States ShippingBoard (36 N. L. R. 225), followed.
^^PPEAL from a judgment of the District Judge of Balapitiya.
L. A. Rajapakse, for the plaintiff, appellant.
G. Thomas (with him A. C. Alles), for the defendant-respondent.
Cur. adv. vvlt.
November 13, 1941. Moseley J.—
This appeal arises out of an action brought by the plaintiff against thedefendant for damages for injuries sustained by the plaintiff as the resultof a collision between a bus in which the plaintiff was a passenger and amotor lorry owned by defendant and driven, at the time of the collision,by K. E. Soysa, who was alleged to be defendant’s driver, and to havedriven the lorry negligently and without reasonable and proper care.The learned District Judge found that Soysa was not in the employ ofthe defendant, but that he “ was acting for defendant’s benefit; andthat the lorry was driven without due care ”. He awarded the plaintiffRs. 300 by way of damages without costs. Against this judgment theplaintiff appeals on the ground that the amount of damages awarded isinadequate and that there was no justification for depriving him of hiscosts. For reasons which will appear later discussion of neither of thesepoints is necessary.
On the other hand the defendant gave notice in manner provided bysection 772 of the Civil Procedure Code, that he would, at the hearing ofthe appeal, take certain objections to the decree. That objection whichinvites our consideration is to the effect.that, in view of the finding bythe District Judge that Soysa was not employed by the defendant, thelatter cannot be held liable for any act of negligence committed by him,and that the plaintiff’s action should therefore have been dismissed.
Counsel for appellant contended that it is not open for a respondent totake an objection which goes directly to the root of the matter ; that astatement of objection to a decree is of smaller scope than a petition ofappeal ; and that a person aggrieved by a judgment should appealin the ordinary way. He invited us to contrast the use of the words“ any part of the decree ” where they appear in section 772 of theProcedure Code with that of the words “ any judgment, decree, or order ”in section 73 of the Courts Ordinance (Cap. 6), and to infer therefrom
MOSELEY J.—Wijeyratne v. Pillai.
107
an intention on the part of the Legislature to limit the right conferredupon a respondent by section 772 to objections to something less thanthe decree as a whole. He cited, in support, the judgment of Schneider J.in de Silva v. de Silva et al.' in which, at page 295 the learned Judgeexpressed the view that in view of the language of section 772 “ whatwas contemplated by the section was objection to a part of the decree,not to the whole of it” This judgment does not appear
to have been considered by Macdonell C.J. in the later case of BritishCeylon Corporation, Ltd. v. The United States Shipping Board et aU. In thatcase the plaintiff’s action against the first defendant was dismissed, aswas the first defendant’s claim in reconvention, but it was ordered thatas between the plaintiff and the first defendant each party should pay itsown costs. I may mention parenthetically that the head-note to thereport of that case appears to be misleading, and the true position is to befound in the judgment of Macdonell C.J. at page 242. The first defend-ant appealed, asking to be given his costs in the Court below, and theplaintiff filed an objection under section 772 the ground of which wasthat the judgment was wrong in dismissing the plaintiff’s action againstfirst defendant and that judgment ought to be given against him.Macdonell C.J. referred to section 754 of the Code which contemplatesan appeal against “ any judgment, decree, or order of any original court ”and to section 772 which permits a respondent, though he may not haveappealed against any part of the decree, on giving seven days’ notice, to“ take any objection to the decree which he could have taken by way ofappeal”. The learned Chief Justice expressed the opinion that whatthe section says is “that where there is an appeal, whether against adecree or an order, objection may be taken to anything appealable in thedecree out of which the appeal rises ". With respect I may say that I amof the same opinion. Indeed, to whittle down the scope of the section,as we have been invited to' do, seems to me to amount to doing violenceto the language of the section. The words “ any part of a decree ”,in my view, must mean the whole of the decree or any part thereof.I find then that the defendant’s objection is one that may properly betaken. The question for decisions then is whether or not, in view of theDistrict Judge’s finding that Soysa was not in the employ of the defend-ant, and I may say at once that in my view that finding is correct, thelatter can be held liable for the tortious act of Soysa.
There was evidence, which was properly accepted, that the defendant’sregular driver was one Fernando, and that on the day in questionFernando drove the lorry when it set out from Colombo on its journey toElpitiya in the course of which the collision occurred. It was also,in my opinion, properly found that, at the time of the collision, the lorrywas being driven by Soysa. How, when, and where Soysa assumedcontrol of the lorry is a point upon which there is complete absence ofevidence. There is no evidence of any person who saw Fernando at thetime of, or shortly after, or at the scene of, the collision.
According to Pollock’s Law of. Torts (8th ed., page 81), it is doubtfulwhether a servant has any authority, implied by law to delegate his dutyto a stranger, even in case of sudden necessity, so as to make his employer* 27 N. L. R. 289.* 36 N. L. R. 225.
108
MOSELEY J.—Wijeyratne v. Pillai.
liable for that stranger’s acts and defaults. At all events he has notsuch authority where it ispossibleto communicate with the employer.
This was held to be so inGwilliamv. Twist and another 1Where A.L.
Smith L.J. said :
“ It is clear that it is not prima facie within the scope of a coach-man’s employment to delegate the duty of driving to other persons…. To constitutea personan agent of necessityhe mustbe
unable to communicatewith hisemployer ; he cannotbe suchan
agent if he is in a position to do so. The impossibility of communicatingwith the principal is the foundation of the doctrine of an agent ofnecessity.”
In the present case there is nothing to show that there was a case ofsudden necessity, or that, if there was, it was impossible for Fernandoto communicate with defendant.
There is, however, another case in which an employer may be heldliable for the act of a stranger. That is where, by negligence of a servant,opportunity is given for a third person to commit the wrongful or negligentact which is the immediate cause of the damage complained of. InEngelhart v. Farrant & Co., and T. J. Lipton' the defendant employed adriver, and a lad, who had nothing to do with the driving, to go in thecart and deliver parcels to customers. The driver left the cart and,in his absence, the lad drove on and came into collision with plaintiff’scarriage. Lord Esher M.R., held that the negligence of the driver wasthe effective cause of the damage suffered by the plaintiff and that thedefendant was liable therefor. The principal stated in that decision wasconsidered in Nalini Ranjan Sen Gupta v. Corporation of Calucuttaa, andwas considered to be well established. The last-mentioned case, however,was one in which a chauffeur left a car in charge of a cleaner who attemptedto drive the car and brought it into collision with a lamp-post. WalmsleyJ. drew a clear distinction between a motor-car with the engine at rest,and a horse-drawn van with the reins attached to a hook as was the casein Engelhart v. 'Farrant & Co. and T> J. Lipton (supra). He consideredthat a much larger measure of interference was needed in the case of acar, and did not, on the evidence before him, consider that the act of thechauffeur, in leaving the car, could be regarded as negligence.
Counsel for the appellant relied upon the rule laid down in Engelhart v.Farrant & Co. and T. J. Lipton (supra) and also referred us to Priestly v.Dumeyer' briefly reported in Bisset and Smith’s Digest of South AfricanCase Law, at page 770. In that case it was held that the negligence of adriver in handing over the reins to an incompetent person was the effectivecause of the ensuing accident, and that the defendant (the driver’semployer) was liable. There is, however, in the present case, no evidencethat the man Soysa was an incompetent driver. Following the distinctionwhich was drawn in the Indian case mentioned above, and in view of thelack of evidence on the point, I find myself unable to hold that thehanding over by Fernando to Soysa was the effective cause of the collision.
Counsel for the appellant finally took up the position that the DistrictJudge’s finding was that Soysa was acting for defendant’s benefit, and
(i.S95) 2 Q. B. 84.3 /. L. R. 52 Cal. !>S3.
(1S97) 1 Q. B. 240.* 15 S. C. 304.
109
NIHILL. J.—Wijesekere v. Eastern Bank.
that defendant is consequently liable. The learned District Judge dealtwith this point somewhat summarily in the following words : —
“ Defendant says that on this day the lorry was being used for thepurpose of transporting goods for him from Colombo to Elpitiya and,as Edmund Zoysa was acting as driver in the course of this trip I haveto hold that defendant is liable for damages caused by this collision.”
It is apparently on that basis that the learned District Judge found thatSoysa was acting for defendant’s benefit. It seems to me difficult tosupport this finding. In examination-in-chief the defendant said:
“ I did not receive from S. M. Fernando that day’s collection In cross-examination he said :“ S. M. Fernando did not pay me collections for
two or three days. I deducted that amount from his salary ”. Thisevidence seems to me to fall distinctly short of proving that the defendantin any way ratified the tort of Soysa. Having found that Soysa was notemployed by the defendant to render the latter liable it was essential thatthere should be a finding of ratification. There is, in my opinion, noevidence to support such a finding.
For these reasons the plaintiff’s action must fail. The appeal isdismissed with costs, the cross-objection is allowed, and the judgmentof the lower Court is set aside. Judgment will be entered for the.defendant with costs.
Keuneman J.— I agree.
♦
Appeal dismissed.Cross-objection allowed.