Marshall v Johnson

JurisdictionBahamas
CourtSupreme Court
JudgeOsadebay, J.
Judgment Date16 Nov 1994
Docket NumberNo. 760 of 1991

Supreme Court

Osadebay, J.

No. 760 of 1991

Marshall
and
Johnson
Appearances:

Mrs Anita Allen for the plaintiff

Mr Michael Allen for the defendant

Personal property - Plaintiff's claim in action against defendant for delivery of a car or the sum of $23,000 being the value of the said car — Damages for detention is also claimed by the defendant — Defendant claimed that he had given car to another person whom he thought was part of the plaintiff's family — Defendant denied knowledge of plaintiff — Plaintiff was to collect car from defendant and pay a freight cost of $125 — The Mustang GT car was new — Act of defendant amounted to gross negligence and also a breach of the terms of the bailment or carriage agreement — Judgment entered for the plaintiffs.

1

Osadebay, J. (Actg): The plaintiff's claim in this action against the defendant is for the delivery up of a car — the plaintiff's car or the sum of $23,000 being the value of the said car. Damages for detention is also claimed by the plaintiff. The plaintiff's claim is set out in his statement of Claims endorsed on a Writ filed on the 30th April, 1991, as follows:

“The plaintiff's Claim is:–

  • 1. The plaintiff is and was at all material times the owner and entitled to the possession of a 1990 Ford Mustang GT 2-Door Hatchback.

  • 2. The plaintiff sometime on the 28th September, 1990 at Fresh Creek, Andros, delivered to the defendant the said Ford Mustang Car and the defendant orally agreed to transport the said car aboard his boat, the M.V. Gloria, to Nassau in consideration of the payment of $100.00.

  • 3. The plaintiff and the defendant further agreed that the plaintiff would collect the car in Nassau on its arrival.

  • 4. The plaintiff orally requested from the defendant the immediate delivery of his said Ford Mustang sometime on the 29th September, 1990.

  • 5. The defendant has failed to deliver the said car to the plaintiff as agreed and has wrongfully detained and still detains from the plaintiff, the plaintiff's said Ford Mustang, the value of which is Twenty-three Thousand Dollars ($23,000.00).

  • 6. Further, by letter from his Attorneys dated the 5th November, 1990, the plaintiff demanded his car from the defendant but the defendant has failed to deliver the said car to the plaintiff in consequence whereof the plaintiff has suffered loss and damage.

    And the plaintiff Claims:

    • 1. Delivery up of the said car on Twenty-three Thousand Dollars ($23,000.00) the value thereof.

    • 2. Damages for its detention.”

2

The defendant denies the plaintiff's claim and filed a defence on the 9th July, 1991, as follows:–

“D E F E N C E

  • 1. The defendant does not admit paragraph 1 of the Statement of Claim and will put the plaintiff to strict proof of the same at trial.

  • 2. As to paragraph 2 of the Statement of Claim, the defendant says that in Andros he did agree orally with a person to transport a Ford Car to Nassau but does not know personally anyone carrying the plaintiff's name and is uncertain whether he can identify the plaintiff and consequently does not admit that it was the plaintiff who delivered to him a Ford Car at Fresh Creek, Andros for the purpose of transporting the same to Nassau.

  • 3. Further and in the alternative if the plaintiff did deliver to the defendant the said Ford Mustang as alleged in Paragraph 2 of the Statement of Claim, which is not admitted, the defendant says that the terms of the oral agreement to transport the said car were that the defendant would transport the said car to Nassau and could release the said car to a person who would pay for freight at the time of collecting the said car on arrival in Nassau. Further, the defendant says that the agreed freight was $125.00 and not $100.00 as alleged in Paragraph 2 of the Statement of Claim.

  • 4. Paragraph 3 of the Statement of Claim is denied.

  • 5. The defendant does not admit that the plaintiff orally requested from him delivery of the said car as alleged in paragraph 4 of the Statement of Claim and further relies on the representations in paragraph 2 hereof and says that a person who first came to collect the said car in Nassau was not the same as the person who delivered the said car to him in Andros. Further, the defendant says that the person who first came to collect the car from him in Nassau represented himself as the owner of the said vehicle, paid the defendant $100.00 freight only, represented to the defendant that he would return later with the additional $25.00 freight and drove the car away.

  • 6. Further, the defendant says that after the car was collected by the person who first came to collect the car in Nassau, he was approached by a second person who claimed to be the owner of the car to whom the defendant explained that as far as he was concerned, the owner had already collected his vehicle. The defendant that the said second person was not the same as either the person who delivered the car to him in Andros or the person who first came to collect the car in Nassau.

  • 7. The defendant does not admit that he has failed to deliver the said car to the plaintiff as alleged in paragraph 5 of the statement of Claim and further denies that he has wrongfully detained caused to be detained and or continues to detain the said car from the plaintiff.

  • 8. The defendant does not admit the value of the said car as alleged in Paragraph 5 of the Statement of Claim.

3

The facts surrounding this claim and the defence are somewhat unusual.

4

At the material time, the plaintiff was employed at his Uncle's farm at Fresh Creek, Andros. He had been previously employed and worked at various establishments in New Providence and on Paradise Island — at the Le Meridian hotel for 3 years as a lifeguard and on Paradise Island for 10 years.

5

The defendant is and at the material time, was the Owner and Captain of the boat “Lady Gloria”, a private mail boat which plied between Fresh Creek, Andros and Nassau, New Providence. He lives at Fresh Creek, Andros, where his residence is about 150 yards from and overlooking the dock at Fresh Creek, Andros.

6

The plaintiff stated that he has known the defendant for a long time. The plaintiff stated that he was born in that place and has known the defendant since he, the plaintiff, was a little boy. The plaintiff stated that the defendant owns and operates also a “Club” at Fresh Creek where he and other young fellows go to “shoot” pool. Sometimes the defendant was there at the Club. His father and the defendant were “close” friends.

7

The plaintiff owned a 1990, 5.0 Ford Mustang G.T. car. It was a two-shade colour car — deep gray to light gray. He had bought the car in June, 1990, through his cousin, Wellington Davis, the 2nd plaintiff's witness, who operates a vehicle purchasing business partnership with one Henry Thurston. The car was purchased in Miami, Florida and shipped to Andros at a total cost of $23,000.00. It was a new car at the time of purchase.

8

On the 25th September, 1990, the plaintiff met with the defendant and requested that his said car be shipped to Nassau, New Providence for him and he, the plaintiff, would collect the said car in Nassau. The defendant agreed to ship the said car for the plaintiff. The plaintiff had been requested by his sister, who was in Nassau, to come and assist her in managing her new business.

9

On the 28th September, 1990, the plaintiff, early in the morning car to the dock at Fresh Creek, Andros, and met again with the defendant who accepted the car for shipment on Lady Gloria to Nassau. It was agreed between them that upon collecting the car in Nassau, the plaintiff would pay the freight cost of $150. After parking the car at the dock, the defendant asked for and received the keys from the plaintiff. The plaintiff was accompanied by Fred Davis, the plaintiff's 1st witness at the time. Having dropped off the car at the dock, the plaintiff proceeded to the airport at Fresh Creek where he boarded a Charter flight to Nassau, New Providence. No receipt or document was ever prepared for the shipment of the car and none was given to the plaintiff for the receipt and shipment of the car.

10

Upon arrival in Nassau, New Providence on the same day 28th September, 1990, the plaintiff later went to the dock to collect his said car from the defendant on the Lady Gloria, the same day. On arrival at the dock by the Lady Gloria, he saw the car on the boat but the defendant was not there to deliver the car. He was asked to return later for the car. He left and returned the next day, the 29th September, 1990, to collect the car when he met the defendant who informed him that he had delivered the car to a tall man whom he thought was a member of the plaintiff's family. The defendant told him the tall man came for the car and paid him $100 and promised to bring the balance of the freight cost later. When the plaintiff the demanded the delivery of his car, the defendant told the plaintiff to go and report the matter to the police. The plaintiff reported the matter to the police. Nothing has come out of the report and the plaintiff has not been compensated for the loss of his car.

11

The plaintiff denied in evidence that he sent anyone to collect the car for him. He stated that the agreement between him and the defendant was that he, the plaintiff, would collect the car on arrival at Nassau.

12

In support of his claim, the Plaintiff tendered the following documentary exhibits:–

1
    Exhibit C.M. 1 — Certificate of Insurance on the said Vehicle dated 28th June, 1990, in the plaintiff's name. 2. Exhibit C.M. 2 — Certificate of Origin of the vehicle issued May, 1990 in Michigan, U.S.A. 3. Exhibits C.M. 3 & 4 — Purchase documents in the U.S.A. in the names of Wellington Davis & Henry Thurston. 4. Exhibit C.M. 5 Receipt for the purchase of the car from Powell Motor Company in Florida in the name of Henry Thurston. 5. Exhibit C.M. 6 — Receipt for...

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