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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1963) 2 CLR 67
1963 February 12
[WILSON, P., ZEKIA, VASSILIADES AND JOSEPHIDES, JJ.]
MICHAEL VASSILI MANTIS,
Appellant-Plaintiff,
v.
IOANNIS CONSTANTINOU TYRIMOU AND OTHERS,
Respondents-Defendants.
(Civil Appeal No. 4400).
Practice-Accord and satisfaction or release must always be pleaded.
Civil Wrongs-Joint tort-feasors-Whether release of one or more of the joint tort-feasors in consideration of part payment of the claim after the institution of the action against all, extinguishes the cause of action against all-The Civil Wrongs Law, Cap. 148, section 11.
The four defendants in the action were passengers in plaintiff's bus wherein they had a quarrel and a fight causing damage to the fittings which cost the plaintiff £30 to repair. He sued all four of them of this amount as joint tort-feasors.
After the institution of the action the first two defendants paid to the plaintiff one half of the claim and costs so far incurred i.e. £ 16.500 which the plaintiff accepted and received as their shares in his claim at that stage promising not to take any further steps against them.
The remaining 2 defendants i.e. the respondents defended the action, alleging that the damage did not exceed £1, that the damage was caused by the first defendant, but did not plead in their defence either accord and satisfaction or release. The first judge was satisfied from the evidence that the damage was £30, and that all four defendants were joint-tort-feasors, but came to the conclusion that the payment by the first two defendants extinguished the cause of action under section 11 of the Civil Wrongs Law, Cap. 148. He, therefore, dismissed the action with costs.
The plaintiff appealed against this decision and the High Court in allowing the appeal:-
Held, (1) release from liability in tort, is no doubt a defence which mainly rests on facts, and must be pleaded. On the pleadings, as they stand in this case, we are unanimously of opinion that it was neither open to the defendants to lead evidence to prove release, nor was it open to the trial judge to find release upon which to rest the judgment in the action.
(2) And as far as the evidence is concerned, it is clear to us that what appears on the record, cannot amount to a release extinguishing the cause of action in this case in the circumstances it is unnecessary for the purposes of this appeal to deal further with the submissions made in connection with section 11 of the Civil Wrongs Law, Cap. 148.
(3) The appeal must be allowed, and judgment be entered for the appellant-plaintiff against the respondents (defendants 3 and 4) for £15 with costs in the District Court on the scale applicable to the claim up to the closing of the pleadings, and on the scale applicable to the amount of the judgment thereafter, plus costs in the appeal.
Appeal allowed with costs.
Appeal.
Appeal against the judgment of the District Court of Larnaca (Vassiliades D.J.) dated the 17.10.62 No. 122/62) dismissing Plaintiff's claim for £30 for damages caused to his motor-vehicle due to the wrong and negligent act of the defendants.
A. N. Antoniades for the appellant.
Ph. Kalodikis for the respondents.
WILSON, P.: Mr. Justice Vassiliades will deliver the judgment in this case.
VASSILIADES, J.: This is an appeal against the judgment of the District Court of Larnaca dismissing plaintiff's action for damage to his motor vehicle.
The four defendants in the action were passengers in plaintiff's bus, wherein they had a quarrel and a fight causing damage to the fittings, which cost the plaintiff £30 to repair. He sued all four of them for this amount, as joint tort-feasors.
After the institution of the action, the two first defendants paid to the plaintiff one half of the claim plus one half of the costs so far incurred, i.e. a total sum of £16.500 mils,, which the plaintiff accepted and received as their share in his claim at that stage, promising not to proceed further against these two defendants. No record in writing was made of this payment and no other step was taken by these defendants in the matter.
The other two defendants, the respondents in the present appeal, defended the action alleging that the damage-(which in any case did not exceed £1, they say in their pleading)-was caused by the first defendant and that one of them was not even present at the fight. No accord, satisfaction or release was pleaded in the defence.
At the trial, the plaintiff gave evidence in the course of which he said:
"After action defendants 1 and 2 paid £16.500 i.e. £15 towards the claim and £1,500 towards costs. I do not claim the balance as against them".
And in cross-examination on this point, he said:
"I claim the balance of £15 from defendants 3 and 4" (P.W. 1 at p. 6B and D of the record).
The trial Judge was satisfied from the evidence before him-
"that damage to the amount of £30 was caused to plaintiff's motor bus, jointly by all four defendants, as alleged by the plaintiff."
And that all four defendants were joint tort-feasors (Vide judgment at p. 8E and G). But considering the provisions of section 11 of the Civil Wrongs Law, Cap. 148, in the light of English decisions in this connection, which he did not consider binding, the learned trial Judge came to the conclusion that the payment in question by the first two defendants extinguished the cause of action and he, therefore, dismissed the action with costs.
The plaintiff appealed against this decision, contending that it is erroneous in law; and that in any case, release was neither pleaded as a defence, nor was there evidence to establish it.
Release from liability in tort, is no doubt a defence which mainly rests on facts, and must be pleaded. On the pleadings, as they stand in this case, we are unanimously of opinion, that it was neither open to the defendants to lead evidence to prove release, nor was it open to the trial Judge to find release upon which to rest the judgment in the action. And as far as the evidence is concerned, it is clear to us that what appears on the record, cannot amount to a release extinguishing the cause of action in this case.
In the circumstances, it is unnecessary for the purposes of this appeal to deal further with the submissions made in connection with section 11 of the Civil Wrongs Law.
The appeal must be allowed, and judgment be entered for the appellant-plaintiff against the respondents (defendants 3 and 4) for £15 with costs in the District Court on the scale applicable to the claim up to the closing of the pleadings, and on the scale applicable to the amount of the judgment thereafter, plus costs in the appeal.
Appeal allowed with costs.