19 NLR 505

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 19 NLR 505
• Date: 24 January 1917
• Case Number: NLR19V505
• Type of Document: Case report

505

1917 Present : De Sampayo J.

CASSIM v. PERERA.

411-C. R. Colombo, 53,489.

Fish sent by the railway-Insufficiently packed in ice-Refusal to deliver fish to consignee unless full parcels rate was paid-Action against parcels clerk for damages-Action based on tort-Wrongful conversion-Is the action only one on contract against the Government?

Fish packed in eleven boxes was sent by the Ceylon Government Railway to the plaintiff to the Slave Island station. As the boxes appeared, to contain either no ice or insufficient ice, the defendant, the parcels clerk, reported the matter to the station master. The station master, on the orders of his superior officers, instructed the defendant not to allow the fish to be removed without the fall parcels rate being paid (the concession of a reduced rate not being available to plaintiff, as the fish was not packed with sufficient ice).

The plaintiff refused to pay the full rate, and the fish was sold by auction by the Rail way authorities. The plaintiff thereupon sued the defendant (parcels clerk) for the recovery of damages, alleging that the defendant acted illegally and wrongfully.

Held, that the action was not maintainable against the defendant, as the plaintiff's ' remedy, if any, was on the contract with the Government Railway, and not founded on tort.

" The plaint no doubt states that the defendant acted 'unlaw- fully,' and wrongfully refused to deliver, bat the use of these strong terms does not alter the essential character of the action."

" Although a person who unlawfully refuses to give up property of which he has the custody cannot justify the refusal by saying that he is only agent or servant of another, yet, since in order to make him legally liable he must be shown to have had possession, it is material to consider his exact position towards the goods in question. A servant who has the care of goods on his master's premises cannot, as a general rule, be said to be in possession of them. The argument as to conversion of the fish by the defendant cannot be sustained."

THE facts are set out in the judgment.

Garvin, S.-G., for defendant, appellant.

E. W. Jayewardene, for plaintiff, respondent.

Cur. adv. vult.

January 24, 1917. DE SAMPAYO J.-

I think that the judgment of the Commissioner cannot stand, for the reason that the defendant is not legally liable to answer the plaintiff's claim. It appears that some fish, packed in eleven boxes, was carried by the Ceylon Government Railway from Mannar and Jaffna consigned to plaintiff at Slave Island, Colombo, and arrived

506

at the Slave Island station on June 10, 1916. The rule is that, if fish is packed in ice in the proportion of one pound weight of ice at least for each pound weight of fish, it may be conveyed by the train at quarter parcels rate, and that otherwise it is charged at the ordinary rate. The defendant is the parcels clerk at Slave Island station, and as the boxes did not appear on arrival to contain the required quantity of ice, the defendant opened one box, and finding that there was no ice in it reported the matter to the station master, who got three more boxes opened, with the same result. The rest of the boxes were not opened but were weighed, and, an allowance being made for the weight of the boxes, were considered to contain no ice or insufficient ice. The station master reported the matter to his superior...