COREA v. PIERIS et al

051-NLR-NLR-V-13-COREA-v.-PIERIS-et-al.pdf


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April4,1010 Present: Mr. Justice Wood Renton and Mr. Justice Grenier.
■ COREA v. PIERIS et al.
■337a and 337b, D. C., Chilaw, 3,308.
Liability of principal for defamation by agent—Action for defamation byagent—Principal added as party defendant after two years fronydate of defamation—Prescription—Civil Procedure Code, s. 18.
A, who was in charge of B’s estate, defamed C in 1904 bydoing an act within the scope of his authority and in the courseof his employment. In 1905 C brought an action for defamationagainst A for damages, and in 1907 moved and gat A's principal,B, made a party defendant to the action.
Held, (1) that B was liable in damages for the act of his agent A;(2) but that C's cause of action against B was prescribed.
Obiter, (3) that the Court had no power under section 18 of theCivil Procedure Code to make B a party to the action.
rjl HE facts are briefly stated in the headnote.
Sampayo, K.C. (with him Wadsworth and Vernon Grenier), for theadded defendant (appellant in 337a and respondent in 337b).—The added defendant must not be held liable for the acts of hisservant which were not done in the course of his employment.The defendant acted outside the scope of his employment in sendingthe telegram. Counsel referred to Bousted on Agency, pp. 344 and345; and Citizens’ Life Assurance Co. v. Brown.1
The action against the added defendant is clearly barred bythe Prescription Ordinance. Counsel commented on Adriana v.Loiku Acharige Prolishamy,1 2 Came v. Malms,3 Chinnatamby v.Chanmugam.4
[Their Lordships called upon the respondent to reply on thequestion of prescription only.]
H. J. C. Pereira (with him H. A. Jayewardene and Chitty), for theplaintiff (respondent in 337a and appellant in 337b).—The causeof action against the first- defendant and the second defendant isthe same; the second defendant’s liability arises from the very actwhich gives a cause of action against first defendant. Undersection 18 of the Civil Procedure Code the Court had the powerto jpin the second defendant as a party to this case. If theLegislature intended that an added party should have .the benefitof the Prescription Ordinance, it would have made special provision
1(1904) A. C. 428.
2(1884) 6. S. G. G. 93.
(1851) 20 L. J. Hxc. 434.(1909) 1 Cur. L. R. 134.
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to conserve his right. The Legislature has expressly conserved such April 4,1910rights in certain other cases (see Civil Procedure Code, sections 19 Cvnav.and 406).Pwri*
Where the cause of action is identical, and where .the agent issued within the prescribed time, the principal may be joined asa party defendant, even after .the prescribed time.
As between principal and agent there is a privity, and actionagainst one is-action against the other. Counsel referred to OrientalBank Corporation v. Charriol,1 Bwaminathan Chetty v. Silva,2 andHukum Chand, p. 218.
[Wood Renton J. referred counsel to Doyle v. Kaufman 3 Stewardv. The North Metropolitan Tramway Co.,* Weldon v. Neal.']
Weldon v. Neal is an authority in favour of respondent; therethe Court refused to allow a party to be added, on the ground thatif the party were added he would lose the benefit of the Statute ofLimitations.
Sampayo, K.C., in reply.—Imam-ud-din v. Liladhar 6 explainsOriental Bank Corporation o. Charriol; this latter case is no authorityfor the proposition that a party added under section 18 cannot setup a plea of prescription under the circumstances of this case.
Cur. adv. vult.
April 4, 1910. Wood Renton J.—
The plaintiff, who is the respondent in the first of these appealsand the appellant in the second, used one Joseph Pieris, sincedeceased, and now represented by the substituted defendant, whois the Secretary of the District Court of Chilaw, in that Court, torecover damages for libel. The alleged libel consisted of a telegramsent by Joseph Pieris to the Government Agent of the North-Western Province at Kurunegala and the Assistant GovernmentAgent of Chilaw in the following terms: —
" Advocate Corea (meaning the plaintiff) brought two hundredmen to Madugasagare estate belonging to H. J. Pieris, brokebungalow doors, assaulted men, forcibly removed furniture, goats,men injured, intend coming again. ”
The action against Joseph was instituted in January, 1905. Inhis answer Joseph Pieris, while admitting the despatch of thetelegram in question, denied that he had been prompted by maliciousmotives in sending it, and alleged that he had been acting through-out as the agent and for the benefit of the estate of 5. J, Pieris,the added defendant. No steps were taken at that time by theplaintiff to bring H. J. Pieris as an added defendant into the case.
1 (1886) I. L. R. 12 Cal. 642.4 (1885) 16 Q. B. D. 178. (and page 556 in appeal).
* (1904) 7 N. L. R. 279.‘ (1887) 19 Q. B. D. 394.
(1887) 3 Q. B. D. 7.• (1892) I. L. R. 14 All. 524.
April 4,1910
WoodRenton J.
Corea v.Pieria
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He was in fact suing H. J. Pieris, in independent proceedings, fora prosecution instituted agaiust him by H. J. Pieris, on the strengthof information supplied to him by his agent Joseph. The plaintiffrecovered damages in that action against H. J. Pieris in the DistrictCourt, but .the judgment of the District Court was set aside by theSupreme Court in appeal, and the deoision of the Supreme Court inappeal was affirmed in review, and ultimately by the Privy Council.On October 31, 1907, the plaintiff applied in the District Courtthat H. J. Pieris should be added us a defendant in the libel action,and an order so adding him was made on October 29, 1908, andaffirmed by the Supreme Court in appeal on February 18, 1909.
It appears from .the original record of the proceedings (see Record,p. 148), that on the hearing of the application to join him as udefendant in the action no objection was taken by or on behalf ofH. J. Pieris, either that he could not properly be made a party undersection 18 of the Civil Procedure Code, or that the plaintiff’s causeof action, was, as against him, prescribed. Apart altogether fromthe plea of prescription, with which I will deal later on, H. J. Pieris.might, in my opinion, have contended with great force that, undersection 18 of the Civil Procedure Code, the Court had no power tomake him a party .to the action a.t all. Under that section theCourt has power .to add those parties only whose presence maybe necessary in order to enable it effectually and completely toadjudicate upon and settle all the questions involved in the action.The presence of H. J. Pieris was not necessary for that purpose.If Joseph Pieris had published a libel falsely and maliciously inregard to the plaintiff, it was no excuse for him that he was actingas an agent or servant on behalf and for the benefit of H. J. Pieris(see GvUen v. Thomson’s Trustees1), and the question of his liability,which was the only question involved in the action, could have beeneffectually and completely adjudicated upon and settled withoutthe addition of H. J. Pieris at all. That point, however, was nottaken; H. J. Pieris filed answer, pleading that whatever wrongJoseph Pieris might have done was not committed within the scopeof the authority given to him by his principal, and also that in anycase the action against him was prescribed. The learned DistrictJudge has over-ruled bo.th pleas, and given judgment against JosephPieris and H. J. Pieris jointly and severally for a sum of Rs. 1,500.There is no appeal against .that decision in so far as Joseph Pieris’estate is concerned. H. J. Pieris, however, appeals against it onboth the grounds urged in his answer, and the plaintiff on his sideappeals for enhanced damages as against both .the estate of JosephPieris and the added defendant H. J. Pieris.
I will deal with the .three issues involved in these appeals, namely,scope of authority, prescription, and damages, in turn. I thinkthat .the learned District Judge is clearly right in his finding that
‘ i Mae?. 424, 432.
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Joseph Pieris was acting' within the scope of his authority from his April 4,1910principal in sending the telegram which forms the subject of the ^QODpresent action. The rule of law applicable to cases of this kind Rewton J.has thus been stated by the Privy Council in the case of Citizens’ Corea vLife Assurance Co. v. Brown1:—Pieris
“ Although the particular act which gives the cause of action maynot be authorized, still, if the act is done in the course of employmentwhich is authorized, theu the master is liable for the act of hisservant.”
In the present case Joseph Pieris’ telegram was despatched forthe protection of his principal's estate. If the allegations made inthat telegram were true, he was only discharging his duty as H. J.
Pieris’ agent, appointed under the comprehensive power of attorneywhich has been filed in the case (P 1), in communicating the factscontained in it both to the Government Agent and to the AssistantGovernment Agent. I need not refer in detail to the terms of thepower of attorney itself. I entirely agree with all that the learnedDistrict Judge has said on the subject.
I come now to the question of prescription. The action is onefor damages, and, in virtue of. the provisions of section 10 ofOrdinance No. 22 of 1871, it must be brought within two yearsfrom the time when the cause of action arose, that is to say, fromthe date of the publication of the libel. The libel was published onFebruary 6, 1904. H. J. Pieris was made an added party onOctober 29, 1908. It is obvious, therefore, that, if at that datethe plaintiff had filed a fresh plaint against him in respect of thepublication of the libel by Joseph Peiris on February 6, 1904,there would have been no answer to his plea of prescription. Ithas been argued, however, by the plaintiff’s counsel, Mr. H. J. C.
.Pereira, here in appeal, and the learned District Judge, contraryto what would have been his own opinion, has held on the assumedauthority of the English case of Came o. Matins* and of languageused by Burnside 0.J. in Adriana v. Loku Aoharige ProUshamy *that in such a case as the present the point when the Statute ofLimitations takes effect is the date of the first institution of theaction, and not that of the addition of the new party. Mr. Pereirafurther argued that the addition of a party under section 18 ofthe Civil Procedure Code by the order of the Court precluded the~ party so added from setting up any plea of prescription in hisanswer. I am unable to accept any one of these contentions.
Came v. Malins was an action of assumpsit for a balance ofaccount claimed to be due from the defendants to the plaintiffs,who were carrying on business in partnership. It was discoveredjust before the trial that there were eight persons beneficially
■ (1904) A. C. 428.* (1851) 20. L. J. Exe. 484.
* (1884) 6 S. C. O. 93.
18-
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April 4f 1910 interested in the firm at the time of the debt being contracted.
The Court of Exchequer allowed them to be added as eo-plaintiffs,Ubkton J. apparently on the ground that otherwise the Statute of LimitationsCorea v would b® a bar to a fresh action. Baron Parke, who delivered thePierie judgment of the Court of Exchequer, said that the amendmentwould be allowed in view of the serious consequences which wouldfollow to the plaintiffs if their application were refused. I do notthink that there is any real analogy between the position of partnerssuing for a firm debt and that of a master and his servant suedupon entirely different grounds of liability for the publication of alibel. It will be observed that the case of Game v. Matins is prior tothe Common Law Procedure Act, 1854. I have not been able to findany reference to it in any text book of practice available to us here,and, as I shall show presently, the recent decisions of the EnglishCourts of law do not support the view that a party should beallowed to be added to an action where the effect of the additionwill be to deprive him of a plea of prescription which would bar theinstitution of a fresh action against him. The pase of Adriana v.Loku Acharige Prolishamy is also not in point. It was an actionbrought by the plaintiffs as the heirs-at-law of the obligee of abond against the obligors. The first plaintiff had filed her libel intime. The obligors answered pleading (1) never indebted, and(2) non-joinder of other co-heirs as plaintiffs. The other co-heirswere joined as plaintiffs after the expiry of the presoriptive period,and the defendants thereupon added a fresh plea, namely, ofprescription, to their previous answer. The Court held that theplaintiffs were not entitled to judgment: Burnside C.J., on – theground that as they had neither averred nor proved that the deceasedobligee had died intestate, they had failed to disclose any right inthemselves to sue on the bond in question; Lawrie J., on theground that the commencement of an action for the purpose ofpreventing prescription from running out is the issue of the summonsand not the filing of the libel, and that as the action had not beencommenced within ten years prior to the former date, the defendant'splea of prescription must be sustained. Burnside C.J. took occasionto observe obiter that he should have felt bound to follow thedecision in Came v. Matins if it had been necessary to decide thepoint. The learned District Judge is, I think, in error when heassociates the name or Lawrie J. with this obiter dictum. I cannotsee that Lawrie J. expressed any opinion upon the point, and theground of his decision was entirely different. Even if, however,there had been a definite ruling in this sense in the case, it wouldpot, in my opinion, have applied to the circumstances that we haveto deal with here. There seems to me to be no real analogy betweenthe position of parties suing in a representative character and• that of an agent and a principal who are sued, as I have alreadysaid, on entirely different grounds of liability in an action of tort.
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The same observation applies to the decision of Wendt J. and April 4,1910Sampayo A.J. in Bwaminathan Chetty v. Silva.1 The decisions under woodthe modem English Rules of Court seem to me to show that a Renton J.party will not be added where the effect of the addition is to deprive Corea v.him of a defence which he would otherwise have under the PierisStatute of Limitations (see Weldon v. Neal,2 and compare Doyle v.
Kaufman9 and Steward v. The North Metropolitan Tramway Co*).
The case of Oriental Bank Corporation v. Ckarriol 3 merely decided(see lmam-ud*din v. Liladhar e) that limitation does not preclude aCourt from acting under section 2 of the old Indian Code of CivilProcedure by adding a person as a necessary party to the suit.
It does not decide that a party so added is not entitled to set up aplea of limitation, and to claim a dismissal of the suit as againsthim on that ground, in spite of the order of the Court which hasbrought him into the proceedings. As a matter of construction, Ithink that Mr. H. J. C. Pereira’s contention that section 18 of ourown Code of Civil Procedure over-rides the right of an added partyto plead prescription is untenable. At the point of time at whichthe order is made under that section no question of pleading isbefore the Court, and I hold without any hesitation that in spite ofan order made by the District Court, or, for that matter, by theSupreme Court on appeal, adding a party under section 18, a partyso added has the right to plead the provisions of Ordinance No. 22of 1871. I doubt very much whether H. J. Pieris would ever havebeen made a party to this case, either by the District Court or bythe Supreme Court in appeal, if the point had been taken on hisbehalf that he was not a necessary party to the decision of theoriginal action. As I have already said, the grounds on which thesuit is instituted against Joseph Pieris and H. J. Pieris respectivelyare different. Joseph Pieris was sued as the actual author of thelibel. On the findings of the learned District Judge H. J. Pieriswas not personally responsible for the publication of the libel. Heis responsible only as Joseph Pieris* principal, that is to say, he isliable in law for having invested Joseph Pieris with powers whichenable him to libel the plaintiff in his principal*s name. I amdisposed to think that, even under section 5 of the Code of CivilProcedure, the causes of action against Joseph and H. J. Pierisare different. No doubt the publication of the libel is the fact onwhich the cause of action as regards both of them is founded, but,as I have endeavoured to show, the ground of the liability of eachof them is different.
I have only a few words to add as to damages. The assessmentof damages is primarily a question for a jury, or, as here, for theJudge who is acting as a jury. I think that the learned District
(1904) 7 N.Z.R. 279.
{1987) 19 Q. B. D. 394.
{1887) 3 Q. B. D. 7.
« {1885) 16 Q. B. D. 178.
{1886) L L. R. 12. Cal. 642.
(1892) l. L. R. 14. AIL 524.
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April 4,1910 Judge, in arriving at his conclusion on that point, has taken fairaccount of all the circumstances that have to be considered. EvenBsnton J. as regards Joseph Pier is, the libel did not impute any charge ofCorea vrobbery or theft in the ordinary sense of the term. It disclosed
Pierismerely, if true, the kind of raid which is not uncommon in land
disputes in this country. The plaintiff’s moral character has beencleared by the proceedings. The Judge finds, moreover, that he hasbeen involved in a large number of cases, criminal and civil, in con-sequence of an unfortunate proclivity, " to wit, a habit of purchaseof disputed titles to land.” As regards H. J. Pieris, in additionto all these considerations, there is the circumstance that he hadnothing to do personally with the publication of the libel. Althoughevery case has to be dealt with on its own merits, I think that therewas nothing to prevent the learned District Judge from takingaccount of the quantum of damages awarded by the Courts of thisColony in other actions for libel where the imputations complainedof were more serious in character and had received a far morewidely extended publication.
In 337a, D. C., Chilaw, No. 3,308, I would set aside the decreeunder appeal in so far as it affects H. J. Pieris, who is entitled to thecosts of the action and the appeal. As regards the estate of thelate Joseph Pieris, the appeal will be dismissed with costs, if any.In 337b, D. C., Chilaw, No. 3,308, I would dismiss the appeal.The appellant must pay the costs of appeal in 337b of H. J. Pieris,and the costs of the appeal, if any, to the estate of the lateJoseph Pieris.
Grenier J.—
I have had the advantage of reading the judgment of my brotherWood Benton, and as I am in accord with him on all the pointsdiscussed and decided in it, it is unnecessary for me to go over theground already covered by him. The question of prescription wasthe only one that presented any difficulty, but I formed a strongopinion on it against the plaintiff at the argument of the appealon the authorities cited to us, to which full reference is made in thejudgment of my brother, and my opinion is unchanged. I agree tothe order proposed.
Appeal No. 337k allowed; appeal No. 337b dismissed.