Bailment=-Gratuitous bailees-s-Duty to use ordinary diligence

Civil Procedure-Interested parties-s-Parry plaintiff with no interest in the chattel
other than liability for installments due on the chattel damaged by defendant

Damages-e-Bailees=-Extent of liability of I bailee for destruction of chattel

Plaintiffs bought a car under a hire purchase agreement dated Septem-
ber 1928. The first plaintiff sold his interest in the car to the second plain-
tiff in 1929. In 1930 the second plaintiff took the car to the defendants
for certain work to be done. While in the defendants' premises . the car
took fire and was completely destroyed. At that time a sum of about
£E.115 was owing to Gellatly Hankey & Co. under the hire purchase
agreement.

The plaintiffs claimed £E.350 'against the de(j:ndants--.£E.250 repre-
senting the then value of the car and £ E.l 00 for loss of profits which _ was
stated to have been caused through the negligent act of the defendants.

Held: (i) That the first plaintiff's claim must be dismissed since he
was no party at the. contract of bailment and his interest in the car at the
date thereof had ceased .

    (ii) that the destruction of the car was caused throughan act of gross

negligence on the part .of the defendants' servants and thai in these
circumstances it was unnecessary to determine whether the defendants were
gratuitous bailees or bailees for reward, and that even if defendants were
gratuitous bailees it was their duty to use ordianry diligence and ordinary

        skill.                             

(iii) that defendants as bailees cannot be made liable beyond the ac-
tual value of the destroyed chattel.

Coggs v. Bernard (1730) 2 Ld. Kaym. 909; 1 Smith L.C.

Appeal

 Advocates: Mr. Claxton  for plaintiffs; Mr. Francoudi

for defendants

Marc])10, 1931. Halford J.: Th~ only facts which are admitted
in this ~tion are that the plaintiffs took, under a hire purchase agree-
mentdated 6th september 1928, a Morris Oxford tourer from Gellatly
Hankey & Co. with the option of purchase for £E.370, which they
PSed as a taxi cab and which was driven by the second plaintiff Bedros.

• Court: Halford J.

The first plaintiff sold his interest in the car to Bedros in November,
1929. On the 31st July 1930, Bedros took the car to the defendants
for certain work to be done and while in the defendants' premises,
the car took fire and was completely destroyed. At that time a sum
of £E.115 or thereabouts was owing to Gellatly, Hankey & Co. under
the hire purchase agreement.

The plaintiffs later embarked on these proceedings claiming
£E.350 against the defendants of which £E.250 is alleged to repre-
sent the then value of the car and £E.I00 loss of profits for 5 months
up to the _date of ' the proceedings; the loss being stated to have been
caused, through the negligent act of the defendants, when bailees for
reward, in removing the paint from the car by a naked light without
first emptying the petrol tank. .

The defendants deny they were bailees for reward and deny that
the fire was caused through their negligence but claim it was caused \
by the backfiring of the carburettor while being overhauled for re-
pairs; in consequence whereof they repudiate any liability to plaintiffs
for damage.

The defendants have raised an issue as to the interest of the first
plaintiff which I think it desirable should be dealt with first. They
maintain that assuming negligence on their part, they can be under
no liability to this plaintiff in view of the fact that before the fire oc-
curred he had disposed of all his interest in the car; to which he replies
that by the fact that he is still indebted to the hirer-vendors for the
balance of the instalments due, he has an interest in the car which en-
titles him to a right of action against them for causing its destruction,

I cannot follow this plaintiff's argument. He was admittedly no
party to the contract of bailment, as his interest in the car at the date
thereof had ceased. .Hence he can have no claim against defendants
for the breach of the contract and his claim against them must ac-
cordingly be dismissed.

The plaintiff Bedros' case is that one of the defendant partners
Solomon agreed to repaint the car and also do a few general repairs
which were required, for £E.5; he was anxious to try a new paint
sprayer called Duco; that as they found it difficult to remove the old
paint with potash, the defendants' servants used naked lights in blow
lamps with which to burn it off and notwithstanding his warnings of
the danger of fire they continued to do so with the result that the car
caught fire and was destroy

He has' not only' sworn that he saw these lamps being used, and
protested, but he has called the evidence of one of' the defendants'
employees, Abdel Rahman, as well as of a Greek called, Petrinos, the
former having deposed that the fire was caused through petrol on the
floor igniting from the blow lamps and causing an explosion and the
latter to seeing the blow lamps being used and hearing the plaintiff's
protests.

Against this the defendant Solomon has sworn that he agreed to
repaint at cost price and to repair the carburettor without charge; that
on finding it impossible to remove the old paint, they gave up the idea
of repainting. Blow lamps were never used and the fire was caused
through the carburettor backfiring. He denies that Abdel Rahman was
present at the time and has produced the evidence of a small boy
Yahia, a relative, who was working on the carburettor, in corrobora-
tion.

Hence there are two primary issues of fact which fall for de-
termination namely:

1. Was the agreement to repaint and repair for £E.5 or to re-
   paint at cost price and repair the carburettor without charge?
2. Were blow lamps used for removing the paint?

To deal with the second issue first, I have no reason to doubt the
evidence of plaintiff which is cotroborated in all material essentials by

        . Abdel Rahman and Petrinos.'                                        

The only point in which the story told by Abdel Rahman is im-
ptobable is that there were some 2 gallons or so of petrol collected
under the body of the car on the ground after emptying the tank. I do
not regard this as a matter of importance.

Against this is the evidence of the defendant Solomon and the
boy Yahia, which is contradictory in essential details. Solomon swears
there was petrol on the floor and on backfiring the petrol on the floor
ignited. Yahia on the other hand is positive that the carburettor
caught fire after backfiring and the fire communicated with the tank.
Yahia swears Abdel Rahman was present at the time while Solomon

        says only he and Yahia were there.                               

There is another point which throws to my mind a Clear light
on . the value of Solomon's evidence. He admits he dismissed Abdel
Rahman the day following his giving evidence in court but gives as

the reason for dismissing him, after 7 years service, the fact that he
absented himself from work for some days 'a month previously: And
Abdel Rahman swore that blow lamps were used!

 While Solomon admits that although Bedros was anxious to have"
the car repainted, when he returned to look at the work before the
fire occurred, he made no remark on the fact that they had stopped

           work on removing the old paint.                                                        

I have come with reluctance but without hesitation to the ~ .
elusion that the evidence of the defendant Solomon is 1Jl1trDe and that
the boy Yahia has been badly coached to corroborate this evidence.

I not only believe the evidence of the plaintiff and his witnesses

. that blow lamps were used "to remove the paint but that there was
never any question of repair to' the carburettor and that the defendant's
evidence as to this is a pure invention.

My opinion is confirmed by the evidence of James Reid who
knew the car well and had seen It a few daysbefore the fire and had
never heard of carburettor trouble.

Finally the suggestion that the backfiring. of the carburettor can
cause, in a car of this nature, the tank to ignite is on the evidence .
. barely credible. I find that the defendants caused the fire _ through an
act of gross negligence on the part of their servants by using naked
lights in the. proximity of petrol.

In these circumstances it is unnecessary for me to determine
whether the defendants were gratuitous bailees or bailees for reward,
although if I were called upon to do so I should have little hesitation
in deciding that as the defendant's evidence has been in other respects
untrue, I should prefer the plaintiff's and hold that . there was an
agreement to reward. /

On the assumption that the defendants were gratuitous bailees
who had agreed to do some act about the thing bailed, which is .not
denied, it was their duty to use ordinary diligence arid on the authori-
ties can oIllY be held liable for gross negligence proved against them.
See ChiJtY on Contracts, XVIII edition,. page 492 and Coggs v.

            Bernard (1703) 2 Ld. Kaym. 909; 1 Smith L.C.                           

It is their further duty to use ordinary skill which they failed to do.

I Hence on the main issues as framed on page 7 of the record, -
on the above finding of fact, I hold that the defendants are liable to