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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V17) 1 CLR 120
1944 July 7
[JACKSON, C.J., AND GRIFFITH WILLIAMS, J.]
GEORGE S. MALAKOS,
Appellant,
v.
LOUIS LOIZOU AND ANOTHER,
Respondents.
(Civil Appeal No. 3742.)
Hire-purchase agreement-Injury caused by third party to article bailed- Remedies of Bailee-Contract Law, 1930, section 188.
The appellant acquired a motor-cycle from a firm of motor car dealers under a hire-purchase agreement, a term of which was that the motorcycle was to remain the property of the said dealers until the last instalment under the agreement was paid. In September, 1940, the appellant hired the motor-cycle to the Military authorities for a payment of £5 a month. While the motor-cycle was being ridden by a member of the Forces, and while there were instalments still unpaid under the said hire-purchase agreement, it came into collision with a motor car belonging to the respondents, and was injured. The appellant thereupon brought this action for negligence against the respondents as owners of the said motor car.
It was contended by the respondents that the appellant being neither the owner of the motor-cycle, nor a bailee in possession had no right of claim against them.
Held: By section 188 of the Contract Law, 1930, a bailee in possession of the goods bailed is entitled to use such remedies as the owner might use against a third party causing injury to the goods bailed. But where a bailee, having hired goods under a hire-purchase agreement, himself parts with possession of such goods for a fixed term, not yet expired, he has no right to claim damages for injury by third persons to such goods.
There is nothing in section 188 of the Contract Law which extends the rights of a bailee, in respect of injury to goods bailed, beyond the rights recognized by the Common Law of England.
Appeal from the judgment of the District Court of Limassol.
C. Myrianthis for the appellant.
J. Eliades for the respondents.
The facts sufficiently appear from the judgment of the Court which was delivered by:
JACKSON, C.J.: In this case the appellant sued as plaintiff in the Magistrate's Court at Limassol for damages for injury caused to a motor-cycle in circumstances which it is unnecessary for us to state. It is important to observe that he sued as the person having immediate possession or the right to immediate possession of the motor-cycle.
He was awarded damages by the Magistrate who considered that he was entitled to them by reason of a "possessory title" in the motor-cycle at the time of the injury to it.
The defendants appealed to the President, District Court, who allowed their appeal on the ground that the plaintiff had failed to prove in the Magistrate's Court that, at the time of the injury, he either owned the motor-cycle or had possession of it, or an immediate right to possession. The only question before us is, therefore, whether the plaintiff had or had not a right to claim damages for the injury to the motor-cycle.
We have already pointed out that he sued not as the owner but as the person having immediate possession or a right to immediate possession. It appears from the evidence that he was not the owner of the motor-cycle for he had acquired it under a hire- purchase agreement by virtue of which the ownership remained in the hirers until the final completion of the payment of the price. He admitted that the full price had not been paid. In September, 1940, he had hired the cycle to the military authorities for a payment of £5 a month, and it was while the cycle was being ridden by a member of the Forces that the injury to it occurred.
By section 188 of the Contract Law, 1930, a bailee is given, in respect of goods bailed, the same remedies as the owner might have used against any third person who does them any injury. The hire-purchase agreement, by virtue of which the plaintiff acquired possession of the motor-cycle from the owners, was not produced in evidence, but it is apparent that it was only as a bailee of the motor-cycle under this agreement that the plaintiff could have claimed in the Magistrate's Court. He was not an owner who had himself bailed the motor-cycle to another and did not claim as such.
It is well established in English common law that the right of a bailee to claim damages for injury to goods bailed is given to one who is in actual possession of the goods bailed or who has a right to immediate possession of them. There is nothing in section 188 of the Contract Law which extends the right of a bailee, in respect of injury to goods bailed, beyond the rights recognized by the common law of England.
Since the hire-purchase agreement, by virtue of which the plaintiff had acquired possession of the motorcycle, was not in evidence, we do not know whether he had or had not terminated that agreement by hiring the motor-cycle to the military authorities and so lost his rights as a bailee under it. But, assuming that he had not lost his rights under the hire-purchase agreement, he was clearly not in actual possession of the motor-cycle at the time of the injury to it, Was he, nevertheless, entitled to immediate possession? Such evidence as there is indicates that he had parted with possession of the motor-cycle for a fixed term and could not therefore recover possession at will. If there was anything in his agreement with the military authorities which entitled him to resume possession of the motor-cycle whenever he wished to do so, it was for him to prove this.
The plaintiff's claim is in no way supported by section 46 (2) of the Civil Wrongs Law, 1932, by which a duty not to be negligent is imposed on certain persons in favour of certain others. It was for the plaintiff to show that he came within the description of the persons to whom, by virtue of that section, coupled with section 188 of the Contract Law, the defendants owed a duty in the circumstances of this case. He tried to do so by claiming, not that he was the owner of the motor-cycle, for he clearly could not claim that he was, but that he was a person in possession of the motor-cycle or having a right to its immediate possession and that he consequently had the same rights as the owner to sue in respect of injury to it.
He did not sue in respect of injury to any reversionary interest in the motor-cycle which he retained during the hiring of the cycle to the military authorities. If his claim had taken that form, other and different evidence would have been necessary to support it.
Nor did he sue by reason of any liability which he had to the owners of the motor-cycle under his hire-purchase agreement with them, and it is, indeed, clear from the case of the "Winkfield" (1902 P.42) that he could not have done so. In that ease all the authorities relating to the right of a bailee to sue in respect of injury to goods bailed were so exhaustively reviewed that we need refer to no other authority in support of the conclusions at which we have arrived in this case.
The plaintiff based his claim on possession of the motor-cycle, or on a right to immediate possession of it, at the time of the injury to it. He certainly had not possession of it and the Magistrate took the view that he had not established a right to immediate possession. Notwithstanding that view, which was, in our opinion, a correct view, the Magistrate proceeded to find in favour of the plaintiff by an extension of the settled law. We are not prepared to follow the Magistrate along that extension and we think that the President, District Court, was right in reversing his decision.
This appeal must therefore be dismissed with costs.