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Kondiba Gopal Vs. A. Mestrejean - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 926 of 1927
Judge
Reported inAIR1928Bom91; (1928)30BOMLR162
AppellantKondiba Gopal
RespondentA. Mestrejean
Excerpt:
.....whose direction and control the vessel is at the time of the occurrence complained of. 15. in a case like this, it seems to me on the authorities that the decisive question is, who at the time of the wrongful act has the power of controlling the servant in the way in which he does his work? the plaintiff seeks to hold the original defendant as well as the bank liable in respect of the same act or transaction, namely, the accident which resulted in the injuries to him. the rule only speaks of any common question of law or fact, that is to say, if the principal question between the persons to be joined as defendants is common, then, in my opinion, the second condition under the rule is satisfied. there is clearly no foundation whatever for either of these assumptions......laid down by the rule exists. the plaintiff seeks to hold the original defendant as well as the bank liable in respect of the same act or transaction, namely, the accident which resulted in the injuries to him. as to the second condition mr. jinnah argues that before a person can be added as defendant, it must be shown that all questions of law or fact which would arise are common, and argues that the bank would not be interested in the question as to the car being under the control of the original defendant. the first observation to be made on this is, that that proposition is not to be found in the rule. the rule only speaks of any common question of law or fact, that is to say, if the principal question between the persons to be joined as defendants is common, then, in my opinion,.....
Judgment:

Rangnekar, J.

1. This is a summons taken out by the plaintiff for adding Comptoir National De'Escompte De Paris, a bank, as party defendant, and for amendment of plaint and making consequential amendments therein. The suit is to recover damages alleged to be sustained by the plaintiff as the result of his being knocked down by a motor car belonging to the defendant. The accident took place on October 17, 1926. The suit was filed on April 28, 1927. There was correspondence prior to the suit between the plaintiff and the defendant and their attorneys. In that correspondence the plaintiff alleged that the car belonged to the defendant and the chauffeur who was driving the car at the time of the accident was the defendant's servant. The defendant never repudiated these allegations, and his case now is that the plaint never inquired of him whether he was the owner of the car or whether the chauffeur was his servant In the first letter written by the plaintiff's solicitors dated January 8, 1927, the plaintiff averred that the car belonged to the defendant and the chauffeur was his servant, The defendant replied on January 14, in which he stated that the plaintiff's letter was the first intimation to him of the injuries sustained by the plaintiff and promised to write after making inquiries. On January 28, the solicitors for the defendant wrote to the solicitors of the plaintiffs. That letter clearly accepted the position set up by the plaintiff in his first letter as regards the ownership of the car and the relation of the chauffeur to the defendant. In any case, the defendant did not in that letter deny that he was the owner of the car, nor that the chauffeur was his servant, On February 7, the plaintiff's solicitors wrote to the defendant's solicitors repeating their allegation that the car belonged to the defendant, and referring to the fact that the driver was fined by the Honorary Magistrate, To that a reply was sent by the defendant's solicitors in which they did not deny the allegation that the car belonged to the defendant, and as to the fine stated as follows :-'We are fully aware that our client's chauffeur was fined Rs 10, etc,'

2. It is clear on the correspondence that the defendant never alleged that the car did not belong to him in spite of the fact that the plaintiff's case was that it did, and never alleged that the chauffeur was not his servant in spite of the fact the plaintiff alleged that he was, and, on the other hand, spoke of the chauffeur as his chauffeur. The correspondence makes it clear that the defendant accepted the position that he was the owner of the car and the master of the chauffeur.

3. The plaintiff then filed a suit, The writ of summons was served on the defendant's solicitora on May 30, and on June 6 they wrote to the plaintiff's solicitors alleging for the first time that the car did not belong to the defendant, and that the driver was not employed by him. They further alleged that the car belonged to the bank and the driver was in the bank's employment. Thereafter the plaintiff's solicitors wrote to the bank to let them know whether the car belonged to them, and whether the same was entrusted to th'3 defendant to by used by him on October 17 last for the purposes of the bank, and, if not, whether he was allowed to use the same for his own purposes, and also whether the said driver was employed by the bank or the defendant herein, or whether he was, while driving the car, under the control of the bank or the control of the defendant.

4. On June 24, Messrs. Crawford, Bayley & Co., who are the defendant's solicitors, wrote to the plaintiff 's solicitors on behalf of the bank stating that the car was the property of the bank and that it was provided and maintained by the bank for the personal use of their Manager (i.e. the defendant), and all expenses pertaining to it including the chauffeur's wages were paid by the bank. Further correspondence ensued in which the plaintiff's solicitors pointed out that the bank had not replied to the plaintiff's queries aa to whether the car was under the control of the defendant or under the bank's control.

5. It was after this correspondence that the present summons was taken out by the plaintiff. When the summons came on for argument, I asked the plaintiff's solicitors to submit a draft of the proposed amendment in order to find out precisely what their case was. This they have now clone, and from the draft it appears that the plaintiff's case now is that having regard to the correspondence the plaintiff is in doubt as to whether the defendant or the bank is liable to him if both are not jointly and severally liable, and that both are jointly and severally liable, and in the alternative that either is liable to the plaintiff.

6. The cause of action in this case is the alleged negligence of the driver of the car. No doubt in this case the chauffeur is said to be paid by the bank,

7. In Pollock on Torts, 12th Edn., it is stated at pp. 79 and 80:-

The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, 'retains the power of controlling the work', a servant is a person subject to the command of his master as to the manner in which he shall do his work; and the master is liable for his acts, neglects, and defaults.

8. In Murray v. Currie (1870) L.R. 6 C.P. 24. Willes J. observes as follows (p. 27):-

In ascertaining who is liable for the act of a wrong doer...you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back, and make the employer of that person liable.

9. On this Pollock observes as follows at p. 80 :-

He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties pf ascertaining the facts.

10. Then at p. 82 in Pollock on Torts the following observations appear:-

One material result of this principle is that a person who is habitually the servant of A may become, for a certain time and for the purpose of certain e AL work, the servant of B; and this although the hand to pay him is still A's.

11. The well known case of Bourke v. White Moss Colliery Co. (1877) 2.C.P.D. 205 is an authority on this point. As Bowen L.J. said in Donovan v. Laing, Wharton, and Down Construction Syndicate [1893] 1 Q.B. 629. (p. 634) 'by the employer is meant- the person who has a right at the moment to control the doing of the act.' Same principles are laid down in Fenian v. The City of Dublin Steam Packet Company. (1838) 8 A. & E. 835. This was a case of a charterparty. The charterer was to pay the wages of the seamen and the captain and all other expenses but the captain and seamen were to be appointed and were appointed by the owners of the steamer. The Court held that the owners were liable for the negligence of the crew and the captain. At p. 842 Lord Denman 0. J. observes as follows:-

We must take it that this accident has occurred by the negligence of the crew in the ordinary course of the vessel's employment. If so, there can be no doubt that for that the owners are liable. It does not turn on the other question; the charterer may be answerable also : but, unless the charterparty has interfered with the general control of the owners, they are clearly liable.

12. Mr. Justice Williams at p. 843 observes as follows:-

It is always a question of fact under whose direction and control the vessel is at the time of the occurrence complained of. That question is solved by another, whose are the crew ?

13. Then he pointed out that although the charterer was to pay for the seamen and for the materials still the owners furnished the crew and the owners had the control, and, therefore, they were liable.

14. That is exactly the position here. The plaintiff's case is that the original defendant had the power of controlling the work. True, the plaintiff did not allege this in the first instance. But the allegation was not necessary so his as the defendant accepted the position of being the owner of the car and the master of the servant, and led the plaintiff to believe that he was the owner. Now that the defendant turns round and says that he is not, I think the plaintiff is entitled to say 'you may not be the owner but the car and the chauffeur wore under your control and order.

15. In a case like this, it seems to me on the authorities that the decisive question is, who at the time of the wrongful act has the power of controlling the servant in the way in which he does his work? The question which of two persons has control is a question of fact which may be determined by the contract and the relationship between those two persons and any other person. When one person lends a servant to another for a particular employment the servant, for anything done m that particular employment, must be dealt with as the servant of the man to whom he is lent although he remains the general servant of the person who lent him. This seems to me to be the principle to be deduced from the authorities I have cited, and particularly from the case of Rowrke v. White Moss Colliery Co.

16. I now turn to deal with Order I, Rule 3, of the Civil Procedure Code, on which Mr. Jinnah relies. That rule runs as follows:-

All persons may be joined as dufeudants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if separata suits were brought against such persons any common question of law or fact would arise.

17. The question is whether on the facts in this case the plaintiff brings his application under this rule. Now the reported decisions unfortunately are not always consistent as to the proper construction of this rule. I prefer to construe the rule as it stands. Speaking of a similar rule in Order XVI, Rule 4, of the Rules of the Supreme Court Swinfen Eady L.J. stated, in In re Beck: Attia v. Seed (1918) 87 L.J. Ch. 335, that these rules must be in modern practice construed liberally. The rule lays down two conditions as to the joinder of defendants, First, those persons may be joined as defendants against whom any right to relief in respect of the same act or transaction is alleged to exist, and, secondly, where if separate suits were brought against such persons any common question of law or fact would arise.

18. There is no dispute in the present case that the first condition laid down by the rule exists. The plaintiff seeks to hold the original defendant as well as the bank liable in respect of the same act or transaction, namely, the accident which resulted in the injuries to him. As to the second condition Mr. Jinnah argues that before a person can be added as defendant, it must be shown that all questions of law or fact which would arise are common, and argues that the bank would not be interested in the question as to the car being under the control of the original defendant. The first observation to be made on this is, that that proposition is not to be found in the rule. The rule only speaks of any common question of law or fact, that is to say, if the principal question between the persons to be joined as defendants is common, then, in my opinion, the second condition under the rule is satisfied. In my opinion, it is not necessary that the evidence as regards each of the defendants should be the same, or that all questions arising regarding the liability of each of the defendants should be common to them, I am supported in this construction by the observations of Mr. Justice Mookerjee in Ramendra Nath Roy v. Brajendra Nath Dass. (1917) I.L.R. 45 Cal. 111. This is what the learned Judge says (p. 135):-

Here, again, it is important to observe that the Code does not require that all the questions of law or fact which arias should be common to all the parties, the contention of the respondents wig, in fact, baaed upon two fallacious assumptions, namely first, that the rules require that each of the defendants should have been concerned in all the transactions, and, secondly, that if different suits were brought, no question would arise in which all the defendants were not interested. There is clearly no foundation whatever for either of these assumptions.

19. With regard to the principle underlying Rule 4 of Order XVI which corresponda to our Rule 8, Order I, Lord Justice Scrutton observed as follows in Payne v. British Time Recorder Co. [1921] 2 K.B.I. (p. 16):-

It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing suffi. cient importance in proportion to the rest to the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.

20. Mr. Jinnah relies on the case of Thompson v. London County Council. [1899] l Q.B. 840. But that was a case where the injury arose from two distinct acts and has no bearing on the question before me. Further, there was no link whatever between the two defendants. Speaking of that case, Lord Justice Scrutton in the case already cited says that (p. 15) in his view having regard to the alteration of the rule (namely Rule 4 of Order XYI) that case would not now be decided in the way in which it was.

21. Apart from this, the plaintiffs case as formulated now is that he is in doubt as to which of the deSfendants is liable to him, and that both or either is liable for the negligence of the chauffeur is proved. That seems to me to bring his case within Order I, Rule 7. It is difficult at this stage to conjecture as to what the case of the bank would be at the hearing as to the terms on which the car was lent by them as alleged to the original defendant, or the relationship existing between the chauffeur and the original defendant and the bank. It is also difficult to ascertain what evidence the plaintiff may bring against either the original defendant or the bank. The present summons is entirely the result of the conduct of the original defendant, and, in my opinion, he cannot now be heard to say that the plaintiff should not be allowed to add the bank as a party defendant and to after the institution of the suit that his defence is that the bank is liable and not he.

22. Under the circumstances, I make the summons absolute, and, having regard to the conduct of the defendant, I order him to pay the costs of the summons.


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