022-NLR-NLR-V-33-MEEDIN-v.-PERERA-et-al.pdf
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DRIEBERG . J.—Meedtn v, Perera
1931Present: Drleberg J. ■MEEDIN v. PERERA et al356-7—.P. C. KegaUa, 16,471.
Motor car—Charge of hiring a private car—Supply of petrol by (he hirer—Fee or reward—Liability of owner—Motor Car Ordinance, No. SO of 1927, e. 2 (I).
Where the owner and the driver of a car, licensed for private use, were charged withhiring the car to a person, who merely supplied the petrol for a journey and gave thedriver a gratuity,—
Held, that there had been no hiring of the car within the meaning of section 2 (1) ofthe Motor Car Ordinance.
Held further, that the owner was not liable unless it was shown that he had authorizedor connived at the unlawful use.
^ PPEAL from a conviction by the Police Magistrate of Regalia.Navaratnam, for the accused, appellants.
July 4, 1931. Driebbrg J.—
The first appellant, the owner, and the second appellant, the driver,of a private car No.-W. 1067 were convicted under section 30 (1) of theMotor Ordinance, No. 20 of 1927, of using the car for a purpose notauthorized by its license.
The facts as found by the Police Magistrate are that K. M. Pereraengaged Wijesingha's car on February 20; on February 21 morning
K.M. Perera went to the stand where Wijesingha s car was, but thesecond appellant met him there and talked to him and K. M. Perera thendecided to take the first appellant's car. K. M. Perera is the uncle of the
prefer the case to be argued after notice to the Attorney-General. In this case I need notdecide it, because the next objection taken appears to me to be good. The document tenderedas security is not a recognizance at all. The name of the petitioner is not mentioned in thedocument, and he does not sign it. Rule 15, second paragraph, shows bow a recognizancecan be acknowledged by sureties. It says that there may be one recognizance acknowledgedby both sureties, or separate recognizances each acknowledged by one surety as may beconvenient. A recognizance is the document entered into by the person by whom the costswould become payable. The surety is another person, and as it was pointed out in The HullPetition Case the very word " surety “ implies a primary liability. The form given in rule16 also shows in its terms that the party principally liable must be a party to the document.
The form starts by saying Be it remembered thatandacknowledge themselves
jointly and severally to owe et cetera ", and in the condition it said that the payment of the
costs which shall become payable by the said. The words, “ the said ” in this paragraph
can only have reference to one of two persons who were mentioned in the first part of therecognizance, and the one referred to is clearly the person liable to pay the costs. In myopinion, therefore, this objection is good, and the document which purports to be a recog-nizance with two sureties is in fact no recognizance at all. It was suggested that thisCourt might allow time under rule 21. But in my opinion that rule only applies wherethe recognizance with two sureties has been tendered, and it is found that the sureties areinsufficient, and not in the case where the document itself is not in compliance with rule 12(1). The application, therefore, made under 12 (3) must be allowed, and I accordingly directthe dismissal of the petition, and order the petitioners to pay the respondent's costs.
DBIEBERQ J.—Meedin «. Perera.
first appellant. K. M. Perera gave the second appellant Bs. 2 for onegallon oi petrol costing Be. 1.55 and let him keep the change; apparentlythat was all that was needed. The drive and back, I infer from theevidence, was about SO miles. On his return he gave the second appellantBe. I as a present. Ir evidence the first appellant said that K. M. Pereraasked him for his car saying that if he hired one he would have to pay" detention also ”. K. M. Perera admits saying so. The Magistratethinks this expression significant but I cannot agree. Truly or falsely,the first appellant and K. M. Perera stated that no hire was paid for thecar, and I think all that K. M. Perera meant was that the hiring onthat occasion would be specially expensive as he was not return-ing until evening and would have to pay more' on account of detention.But apart from this the Magistrate was of opinion that the car washired by reason of K. M. Perera supplying petrol and giving the driver agratuity.
Under section 2 (1) of the Ordinance, a oar is said to be hired if it isused for the conveyance of passengers for fee or reward. This impliesan agreement and an advantage to one side and a fee or reward to theother for it. The owner got nothing by the cost of the petrol beingdefrayed—it must have been consumed on the trip—and the tip of Re. 1to the second appellant for a whole day’s services, which was nothingunusual, was not the result of a previous arrangement but a spontaneousact of K. M. Perera.
It may be, as the Magistrate observes, that it is within the meaning ofthe words “ fee or reward ”, but in the construction of a penal statutea Court can say that an act may be within .the words but not within thespirit of the enactment—The " Gauntlet, ” Dyke v. Elliot
On these facts as found, the second appellant is not guilty of havingused the car for the hire of passengers. There is no evidence against theowner, the first appellant. But the Magistrate has convicted him on theground that the second appellant was presumbly acting on his ordersand that he would be guilty of the offence unless he could show that thesecond appellant received the money against hi's orders; but this is notso. A master is not criminally liable for the act of his servant unless heis made so by statute expressly or by implication, or unless he hasauthorized or connived at the act. There is nothing in section 30 (1) ofthe Ordinance to make anyone but the person using the ear liable andthe first appellant could not be convicted unless it- was shown that hehad authorized or connived at the unlawful use of it.
There was, however, some evidence of real importance. Wijesingha’sevidence was tha.t the previous day K. M. Pereia had agreed to hire hiscar at 50 cents a mile. Gunasena says that on the morning of the 21stafter the second appellant had spoken to K. M. Perera, the latter said thathe had engaged a car at 40 cents a mile and that he did not needGunasena’s car. Gunasena repeated this to his master Wijesingha.
K.M. Perera denied that he said so. The Magistrate makes no referenceto ibis and I can only conclude that he did not believe Gunasena on the
{1872) L. R. 4 P. O. appeals 184, at p. 191.
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MACDONEIiL CJ—Silva v. Seneratne.
point, for if he did, it would have been sufficient to support the convictionof the second appellant. If the car had been engaged and used for hire itwould not be necessary to prove that payment of the hire had beenmade—Katugastota Police Inspector v. Siyadoris AppuhamyThe conviction is set aside and the appellants acquitted.
Set aside.