Essa v Divaris

• Jurisdiction: South Africa
• Judge: Tindall JA, Greenberg JA, Schreiner JA
• Judgment Date: 28 March 1947
• Citation: 1947 (1) SA 753 (A)
• Court: Appellate Division

Tindall, J.A.:

The appellant sued the defendant unsuccessfully in the Cape Provincial Division for damage resulting from the burning of his motor lorry in a fire which occurred at about 1 a.m. on 26th December, 1943, in a garage and service station conducted by the defendant in Sir Lowry Road, Cape Town. One of the questions of fact in issue was whether it was a term of the contract between the parties that the lorry was stored 'at owner's risk'. The plaintiff alleged a verbal agreement entered into during the year 1942 whereby, in consideration of the payment of £1 per month, the defendant undertook to keep plaintiff's lorry in his custody at his garage whenever delivered there by plaintiff and to return it to him whenever demanded. These allegations were admitted in the plea subject to the qualification 'save that it was a term of the said contract that the said lorry would be stored by defendant at owner's risk'.

It appears that the garage in question is divided into three sections by walls with doors through which motor vehicles can pass. Thus a car entering the front section where the petrol pumps, an office and a greasing pit are situate, could drive on through the door in the first wall to the second section and thence through the door in the second wall to the third section. At the date (which was not later than 15th December, 1942) of the conversation during the course of which it was arranged that the plaintiff could garage his car at the garage at £1 per month payable in advance, there was a notice painted in large black letters on a white or creamy-white background on the front side of the first wall reading: 'All cars driven and garaged at owner's risk'. There was also a conspicuous notice painted on the front side of the second wall reading 'All cars garaged at owner's risk'. The findings of the trial Judge as to the existence of these notices have not been called in question. The conversation took place in the first section.

The defendant testified that during this conversation the plaintiff (who was a hawker of fruit and vegetables) mentioned that he wished to leave his lorry in the front section to avoid loss of time when he came for it early every morning. The defendant stated that he told the plaintiff he could leave the lorry anywhere in the building and that he was not responsible for anything that happened to the lorry. The defendant's evidence reads: 'I said, as

Tindall JA

far as I was concerned, he could leave it anywhere in the building. I told him I was not responsible for anything that happens to his lorry. I even made a point of telling him he must always remove his keys from the ignition so that there is no possibility of anybody stealing his car because I am not responsible, and it is his own lookout. He said everybody is the same.' The defendant added that he showed the plaintiff the notice on the first wall, and that the defendant did not object to it and seemed to know all about it. The plaintiff on the other hand denied in his evidence that the defendant said anything about his responsibility or drew his attention to the notice on the wall. He stated that about six months after the conversation he had his lorry greased in the second section and then for the first time saw a notice on the second wall reading 'Cars garaged at owner's risk.' His evidence was that throughout the period of a year during which he left his lorry daily in the garage, he never saw the notice on the first wall. He stated further that prior to his claim in the present case he did not know the meaning of 'cars garaged at owner's risk.'

The plaintiff, who is an Indian and who gave his evidence in Afrikaans, told the court that he cannot speak English very well. It appears that at the time of the conversation the plaintiff was accompanied by his brother Adam Essa, who for some time previously had been storing a lorry of his own in the defendant's garage, and the plaintiff stated that it was his brother who spoke to the defendant. Adam Essa corroborated the plaintiff's evidence as to the conversation which both of them state took place at the petrol pumps. The defendant stated that the conversation occurred at his office, and that, after introducing the plaintiff, Adam Essa, being called by another Indian standing at the petrol pumps, left the office.

The trial Judge, NEWTON THOMPSON, J., found that the plaintiff knows English well but that Adam Essa either does not know English or does not know much. The defendant, a Greek, does not know Afrikaans. In these circumstances, as the learned Judge rightly remarked, it is more likely that the contract was arranged with the plaintiff and not with Adam Essa.

The plaintiff and Adam Essa did not impress the trial Judge favourably and he found they were untruthful. He found that the plaintiff must have seen the notice on the first wall and that he understood it. On the other hand, the trial Judge formed the impression that the defendant was 'telling the truth as he knew

Tindall JA

it' and he came to the conclusion that his version of the conversation was substantially correct. In determining the terms of the contract the learned Judge proceeded on the footing that the onus lay on the defendant to prove his plea that the lorry was to be stored at owner's risk and he came to the conclusion that by more than a preponderance of probabilities the defendant had satisfied him that he contracted with the plaintiff to store his lorry at the risk of the plaintiff for all causes, such as fire and theft, comprised in the term 'owner's risk'.

On appeal Mr. Gordon, on behalf of the appellant, contended that the evidence did not justify the conclusion that in this case there had been a contractual limitation of the depositary's common law liability. In dealing with this argument I am prepared to assume, without expressing any opinion on the point, that the onus was on the defendant on this question, as the trial Judge held it was. It is unnecessary to discuss the various points made in detail. A consideration of the evidence and the trial Judge's finding on the question of credibility has led me to the conclusion that this argument cannot prevail. The defendant told the plaintiff that he was not responsible for anything that happened to the lorry and drew his attention to the notice. The plaintiff's remark: 'everybody is the same' meant, it is to be inferred, that other garages made the same condition. The trial Judge observed the plaintiff's reaction to two questions put to him in English, one by counsel for the plaintiff and the other from the bench and heard him utter the phrase 'cars garaged at owner's risk'. He mentions that, when counsel for the defendant asked him whether the notice on the second wall was 'cars driven and garaged at owner's risk', the plaintiff corrected counsel and replied 'cars garaged at owner's risk'. The passage appears in the record of the evidence. The plaintiff was therefore not as ignorant of English as he professed and we should not be justified in differing from the finding that he knew English well. The learned Judge found that the plaintiff understood the notice. He found, in substance, that from the defendant's statement that he would not be responsible for anything that should happen to the lorry and from the terms of the notice, the plaintiff must have understood that the risk of loss would lie on him and not on the defendant. In my opinion counsel for the plaintiff has not made out grounds which would justify this Court in declining to act on that finding in deciding this appeal.

Tindall JA

I may add in regard to the question whether the plaintiff understood the notice, that it was not necessary for the defendant to prove that at the time of the contract the plaintiff understood correctly all the consequences in law that would flow from an agreement that the lorry was to be stored at owner's risk; see Pollock on Contract (ch. 9, 7th ed., p. 450), Powell v Smith (41 L.J. Ch. 734, at p. 735), and Wilding v Sanderson (1897, 2 Ch. 534, at p. 550), quoted in Sampson v Union & Rhodesia Wholesale Ltd. (1929 AD 468, at p. 480). This doctrine was applied in the cases quoted to written contracts, but on principle it must apply equally to a verbal contract once the terms of the latter have been ascertained. For the reasons stated I am of opinion that for the purposes of this appeal it must be accepted that the contract was subject to the owner's risk clause pleaded.

It was argued, however, that in the circumstances that clause must be construed as relating solely to loss caused by theft and not to loss through fire. This argument was based on the injunction given by the defendant to the plaintiff in the conversation above quoted to remove his keys always from the ignition to prevent the theft of his car. I cannot agree that these words have the effect contended for. The fact that the defendant drew special attention to the most common cause of loss cannot rightly be held to have the effect of excluding loss by fire from the operation of the owner's risk clause.

I pass to the question of the effect of the owner's risk clause on the liability of a garage owner for the loss of a motor vehicle left in his care in the garage. Mr. Gordon asked the Court to accept the rule of construction mentioned by MURRAY, J., in Rosenthal v Marks (1944 TPD 172, at p. 177) that such an exemption clause must be interpreted in the light of the legal position which would have existed in the absence of such a clause, so as to ascertain what it was that the parties intended to exempt the bailee from. The authorities quoted in support of this...