1 All E.R. 220

UPTON-ON-SEVERN RURAL DISTRICT COUNCIL

v.

POWELL.

COURT OF APPEAL

January 21, 1942.

Contract-Implied promise-Request to police to send fire brigade-Brigade sent- Premises situate in area of another fire brigade-Liability of owner of premises. Public Health-Fire brigade-Payment for services-Request transmitted through police-Liability of owner of premises.

The appellant's farm was in the Upton police district, but in the Pershore, and not the Upton, fire district. A fire broke out on the farm, and the appellant telephoned to the police inspector at Upton and asked for the fire brigade to be sent. The Upton fire brigade was informed, and it went in the form at once. The appellimt was entitled to the services of the Pershore fire brigade without charge, but the Upton brigade, if it .... went to a fire outside its own area, was entitled to contract for payment for its services. At the time when the brigade was summoned, all the parties concerned were under the impression that the farm was in the Upton fire district. For the Upton fire brigade it was contended that a contract had been created by implication, under which it was entitled to be remunerated for its services :--

HELD: the appellant must be treated as having asked for the Upton fire brigade to be sent to his farm, and the fact that at the time the parties thought that the fire was in, its area did not prevent there being a contractual relationship. The appellant was, therefore, liable under an implied contract to pay for the brigade 's services.

[EDITORIAL NOTE. Fire services have been the subject of some statutory enactment and a considerable body of regulations recently. The supplying of help in the way of apparatus or service… by brigades serving adjoining districts forms an important part of the scheme and it may be that the decision herein may be found to be of more importance than its particular circumstances would seem to suggest.

As to FIRE BRIGADES, see HALSBURY, Hailsham Edn., Vol. 26, pp. 402, 403, paras. 832-834; and FOR CASES, see DIGEST, Vol. 38, pp. 2~5 -227 , Nos. 560-584.  

As TO IMPLIED CONTRACTS, see HALSBURY, Hailsham Edn., Vol. 7, p. 189, para. 88; and FOR CASES, 88e DIGEST, Vol. 12, pp. ll2-114, Nos. 730-751.

APPEAL by the defendant from an order of His Honour, JUDGE ROOPE REEVE, K.C., in the Great Malvern County Court, elected Oct. 13, 1941. The facts are fully set out in the judgment of LORD GREENE, M.R.

G. Russel Vick, K.C. and Harold Eaden for the appellant.

D . A. Scott Cairns for the respondent council.

Vick. K.C.: In the circumstances of the present case, the judge was quite wrong in inferring that any contract had been entered into. There is no evidence of animus contrahendi in anybody at all. The fire brigade went intending to render a gratuitous service. It was only when it was discovered that the fire was in another area that it was decided that a charge should be made. The police officer to whom the appellant telephoned under a public duty to inform the fire brigade. He was not acting as the agent of the appellant.

Counsel for the respondents was not called upon.

LORD GREENE, M.R.: The appellant lives at Strensham, and in Nov., 1939 a fire broke out in his Dutch barn; he thereupon telephoned to the police inspector at the Upton police office and told him that there was a fire and asked for the fire brigade to be sent. The police inspector telephoned a garage near to the fire station at Upton, which itself had no telephone, the Upton brigade was informed and immediately went to the fire, where it remained for a long time engaged in putting it out. It so happens that, although the appellant's farm is in the Upton police district, it is not in the Upton fire district. It is in the Pershore fire district, and the appellant was entitled to have the services of the Pershore fire brigade without payment. The Upton fire brigade, on the other hand, was entitled to go to a fire outside its area and, if it did so, quite apart from its statutory rights, it could make a contract that it would be entitled to repayment of its expenses.

The sole question here is whether or not any contract was made by which the Upton fire brigade rendered services on an implied promise to pay for them made by or on behalf of the appellant. It appears that some 6 hours after the arrival of the Upton fire brigade, the officer of the Pershore brigade arrived on the scene, but without his brigade; he pointed ant to the Upton officer that it was a Pershore fire, and not an Upton fire, but the Upton fire brigade continued rendering services until the next day when the Pershore fire brigade arrived and took over. In the view that I take in this case, what happened in relation to the arrival of the Pershore officer and his conversation with the Upton officer and the subsequent arrival of the Pershore fire brigade has nothing whatever to do with the issue which we have to decide. The county court judge held that the appellant when he rang up the police inspector, asked for the fire brigade to be sent. He also held that the inspector summoned the local Upton fire brigade, which · was perfectly natural, and that he took the order as being one for the fire brigade with which he was connected. It appears that neither the appellant, nor the police officer, nor the Upton fire brigade, until it was so informed by the Pershore officer, knew that the appellant's farm was in fact, not in the Upton area, but was in the Pershore area. The country court judge then goes on to find that the inspector passed on the order and sent his fire brigade, and that was the fire brigade - I have no doubt, which the appellant expected. The county court judge said:

The defendant did not know that if he sent for the Pershore fire brigade what advantage he would have obtained. In my view, there is no escape from the legal liability the defendant has incurred. I think he gave, the order for the fire brigade he wanted, and he got it.

Now those findings are attacked, because it is said that, as the defendant did not know what fire brigade area he was in, what he really wanted was to get the fire brigade of his area, whatever it might be. It does not seem to me that there is any justification for attacking the finding of the judge on that basis. What the defendant wanted was somebody to put ant his fire, and put it out as quickly as possible, and in ringing up the Upton police he must have intended that the inspector at Upton would get the Upton fire brigade; that is the brigade which he would naturally ask for when he rang up Upton. Even apart from that, it seems to me quite sufficient if the Upton inspector reasonably so construed the request made to him, and, indeed, I do not see what other construction the inspector could have put upon that request. It follows, therefore, that on any view the appellant must be treated as having asked for the Upton fire brigade. That request having been made to the Upton fire brigade by a person who was asking for its services, does it, prevent there being a contractual relationship, merely because the Upton fire brigade, which responds to that request and renders the services, thinks, at the time it starts out and for a considerable time afterwards, that the farm in question is in its area, as the officer in charge appears to have thought? In my opinion, that can make no difference. The real truth of the matter is that the appellant wanted the services of Upton; he asked for the services of Upton-that is the request that he made-and Upton, in response to that request, provided those services. He cannot afterwards turn round and say: "Although I wanted Upton, although I did not concern myself when I asked for Upton as to whether I was entitled to get fire services, or whether I would have to pay for them, nevertheless, when it turns out that Upton can demand payment, I am not going to pay them, because Upton were under the erroneous impression that they were rendering gratuitous services in their own area." That, it seems to me, would be quite wrong on principle. In my opinion, the county court judge’s finding cannot be assailed and the appeal must be dismissed with costs.

LUXMOORE, L.J.: I agree.

GODDARD, L.J.: I agree.

Solicitors: Dawes &: Sons, agents for Reynolds and Co. (Birmingham for the Appellant); Gregory, Rowcliffe & Co., Agents forLamberts, Malvern. (for therespondent council).

[Reported by W.K. Scrivener Esq., Barrister-at-law.]