Essa v Divaris

• Jurisdiction: South Africa

Essa v Divaris
1947 (1) SA 753 (A)

1947 (1) SA p753

Citation	1947 (1) SA 753 (A)
Court	Appellate Division
Judge	Tindall JA, Greenberg JA, Schreiner JA
Heard	March 11, 1947; March 12, 1947
Judgment	March 28, 1947

Flynote : Sleutelwoorde

Bailment — Lorry stored in garage at 'owner's risk' — Lorry destroyed by fire — Whether Praetor's Edict applies to loss by fire — Praetor's Edict does not apply to parking garage keepers — Owner's risk clause — Effect of — Whether duty of depositary to convey meaning to owner — Liability of parking garage keeper — On what liability based — Negligence — Proof — Onus.

Headnote : Kopnota

The Praetor's Edict applies to loss by fire.

Considerations of fairness and convenience do not demand the extension of the Praetor's Edict to owners of parking-garages.

Where an owner's risk clause is part of a contract by a parking-garage owner to garage a car for consideration, the effect of such clause is, that though the garage owner undertakes to take care of the car in the

1947 (1) SA p754

garage, the parties also agree that the car will be kept in the garage at the risk of the owner of the car. If under such a contract gross negligence on the part of the garage owner or his servant will, in spite of the owner's risk clause, render him liable, such negligence is the foundation of the plaintiff's case and he must prove it affirmatively.

In regard to the question whether the plaintiff understood the notice, it is 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, written or verbal, that the lorry was to be stored at owner's risk.

The plaintiff had sued the defendant unsuccessfully for damage resulting from the burning of his motor lorry in a fire which had occurred in a garage and service station conducted by the defendant. The trial Court had found that the defendant had verbally contracted with the plaintiff to store the lorry at the risk of the plaintiff for all causes, such as fire and theft, comprised in the term owner's risk. On an appeal,

Held, that as the Praetor's Edict did not apply, the defendant's liability apart from the clause was that of an ordinary bailee or depositary.

Held, further, that the effect of the owner's risk clause, in the present contract, was to free the bailee from liability despite negligence on the part of himself or his servants.

Rosenthal v Marks (1944 TPD 172), approved.

Held, further, on the assumption that proof of gross negligence would have entitled the plaintiff to succeed, that he had failed to discharge the onus.

The plaintiff in the alternative contended that the owner's risk clause did not exempt the garage owner from liability for loss caused by the breach of contract.

Held, that as the Edict did not apply, the only liability of the defendant apart from the owner's risk clause was a liability for loss caused by negligence, and as the clause had been held to exempt the defendant from liability for loss caused by negligence, the alternative contention could not be upheld.

Per GREENBERG, J.A.: It is not necessary to decide whether the defendant is liable to the obligations which attached to a stabularius. On the assumption that he is and that the owner's risk clause did not relieve him from liability for ordinary negligence, the plaintiff had failed to discharge the onus of proving negligence.

Per SCHREINER, J.A: The keeper of a parking-garage does not come within the term stabularius.

Case Information

Appeal from a decision in the Cape Provincial Division (NEWTON-THOMPSON, J.).

The facts appear from the judgment of TINDALL, J.A.

G. Gordon, for the appellant: Respondent purports to limit his liability by a special contract. Wessels, Law of Contract in South Africa (para. 3526), or contractual variation. Rosenthal v Marks (1944 TPD 172 at 177). As to respondent's liability at Common Law (i.e., without any exemption), the legal relationship between

1947 (1) SA p755

the parties is either governed by the Praetor's Edict or is one of bailment. If the Praetor's Edict applies respondent is absolutely liable, unless he proves vis major or damnum fatale. Dönges, Liability for Safe Carriage of Goods (pp. 57 - 59, 72); Davis v Lockstone (1921 AD 153). It is submitted that the Praetor's Edict applies for the following reasons (i) the Praetor's Edict applied to Nautae, Caupones et Stabularii (D. 4.9.1; 47.5.11; 49.5) and the South African Courts have long recognised its application to the Stabularius. Ford v Reed Bros. (1922 TPD 266 at 268); Reed Bros v Ford (1923 TPD 150 at pp. 152, 155); S.A. Philips (Pty.), Ltd v Vermouth (1932 CPD 377 at p. 382), (ii) Just as the proprietor of the hotel to-day is the modern counterpart of the Roman inn-keeper, Davis v Lockstone (supra), so the garage proprietor is of the stabularius. Marriott v Kilburn (1942 NPD 269 at p. 270); Hanna v Shaw (244 Mass. 57, 138 N.E. 247); Williston on Contracts (revised ed., sec. 1065 A, p. 2961, Note 2); 1944 S.A.L.J. p. 431; Aria v Bridgehouse Hotel (137 L.T. 299); Weinberg v Oliver (C.P.D. 1941, Case 37, unreported); Nathan, Law of Damages, p. 140 (iii) even if the garage keeper is not equivalent to the Stabularius, the Praetor's Edict was extensively interpreted in Roman Law. Dönges (supra, pp. 74 - 83) and extended to Aurigae, and it has been similarly extended in South Africa from mariners to carriers by land. Naylor v Munnik (3, S. 187); Tregidga & Co v Sivewright (14 S.C. 76) (iv). The maxim Cessante Ratione Cessat Lex can no longer be advanced since Davis v Lockstone (supra); (v). An hotel proprietor often garages his guest's car and the absolute liability regarding guests' luggage should equally apply to the car; cf. Aria v Bridgehouse Hotel (supra). Fire originating on the premises (the incendia intrinsecus orta of Vinnius quoted by Dönges, supra, at p. 52) is usually associated with negligence and is therefore neither vis major nor damnum fatale; possibly spontaneous combustion may be inherent vice. Dönges (supra, pp. 53, 55), but this is altogether too remote and in any event was not found proved. Therefore respondent has shown neither damnum fatale nor vis major. If the law of bailment applies respondent is liable unless he shows that the lorry was destroyed without any negligence (culpa levis) on his part. Wessels (supra, para. 2088); Joubert Street Investments (Pty.) Ltd v Roberts (1943 TPD 141 at p. 144; 1944, S.A.L.J. at p. 143); it is not enough for him to show that he took all reasonable precautions when he is unable to show how the thing was destroyed.

1947 (1) SA p756

Daly v Chisholm & Co. (1916 CPD 562); Melrose Steam Laundry v Power (1918 TPD 314); Fruhauf v Morrison & Co. (1911 TPD 963); Lituli v Omar (1909, T.S. 192). Where it is not clear what caused a fire, the onus of disproving negligence is not discharged. Van der Merwe v Scribante (1940, G.W.L.D. 36). Even if the first car caught fire through spontaneous ignition, the watchman ought definitely to have known something was wrong. cf. van der Merwe v Scribante (supra, at p. 40). Moreover, the loss of appellant's lorry was caused by a different fire, namely the fire that spread. cf. Musgrove v Pandelis (1919, 2 K.B. 43 (C.A.)); Job Edwards v Birmingham Navigations (1924, 1 K.B. 341 at p. 353); Beven on Negligence (4th ed. vol. 1, p. 625); and the proximate cause of this loss was the negligence of respondent's servant in failing to stop that fire by omitting to do the things that he was able to do, to stop the fire. cf. Musgrove's case (supra). Respondent is also prima facie guilty of negligence 'unless he can show that he exercised due care in the selection of the servants employed by him in the warehouse'. Halsbury's Laws of England (2nd ed., vol. 1, p. 751); particularly in the case of a watchman; cf. also Williams v Curzon Syndicate, Ltd. (35, T.L.R. 475). The term or clause 'At owner's risk' is an accidentale negotii, that is, a special contract. Wessels (supra, para. 3526); the onus of proving it is on respondent. Wiener v Calderbank (1929 TPD 654 at p. 662); Rosenthal v Marks (supra); Mzobe v Prince Service Station (1946 NPD 138 at p. 140). Attention to the 'owner's risk' clause must be drawn at the time of contracting. Chapelton v Barry Urban District Council (1940, 1 K.B. 532); respondent should have explained the contents and meaning of the notice. Davis v Lockstone (supra, at p. 162); Wiener v Calderbank (supra, at p. 661); Mzobe v Prince Service Station (supra, at p. 143); appellant must have understood the notice. Mzobe v Prince Service Station (supra, at pp. 141, 143); respondent should have had, from the routine of his business, a special knowledge of what 'owner's risk' means. Kawasaki Kison Kabushiki v Bantham S.S. Co., Ltd. (1938, 3 A.E.R. 690 at p. 692); the class and educational standard of appellant are important factors. Richardson v Rowntree (894 A.C. 217); Acton v Castle Mail Packets Co. (73 L.T. 158); Marriott v Yeoward Bros. (1909, 2 K.B. 993); as to whether appellant agreed to be bound by the notice, cf. Davis v Lockstone (supra), Wiener v Calderbank (supra), Naylor v Munnik (supra). As to whose evidence should be accepted; applying the test in National

1947 (1) SA p757

Employers' Mutual v Gany (1931 AD 187) and Rex v Malan (A.D. 1946, 1947, (1) P.H.H. 38) the Court must be satisfied that respondent's story is true and that appellant's is false; the Appeal Court is in a better position where the onus is on one party and the Court a quo found that it was discharged. Maitland v Jennings (1940 CPD 489 at p. 496); Engelbrecht v Nieuwoudt (1941 CPD 54); the Appeal Court is in as good a position as the Court a quo to assess the probabilities. Forbes v Golach & Cohen (1917 AD 559 at p. 566); when a Court gives various versions the Court cannot find any one...