ALLEGATION OF FRAUD

Chronicle (Levin), 4 October 1947, Page 4

ALLEGATION OF FRAUD

Claim Oa Farmer Follows ,■ - Sale of Cotf ; Allegations of intent to defraud were made by- the N.I.M.U. Insurance Company against Frederick William Driscole, farmer, of Levin, in -the Magistrate's Court on Friday, when the company claimed from him the return of a pedigree Jersey heifer or its value, £30. In its statement of claim the company averred intent by Driseoie to deceive and , eommit theft of the heifer by sblLing at the Levin saleyards, on September 16, another cow to simulate •ihe heifer. The case was heard hy Mr. A. M. Goulding, S.M., Counsel for the compaily was Mr. N. M. Thomson, Levin, while defendant was represented by Mr. r. Hardie Boys, Wellington. Qutlining the case for the comany, Mr. Thomson said the animal in question was a two-year-old pedigree Jersey heifer, which had • mffered injury in a collision with a motor vehiele. It had been insured with the company, which took over the assessment for damages. The . heifer had not been killed, but had been hurt internally and had later given birth to. a two months' premature calf . The company had paid £30 to Driscole as the owner, being an estimate of tbe total value of Ihe heifer and calf. It had been arranged, continued Mr. Thomson, that Driscole deliver. the heifer to the company at the Levin saleyards on September 23. Qn the night of September; 16 defendant had telephoned the com-

pany's. local manager, Mr. D. J. Sweetzer, and informed him that the heifer had been taken to the saleyards that day and sold in the name of the company. It had realised £5. Mr. Sweetzer had protested that. that had not been the agreed day, nor had any arrangements been made to sell the animal. The follov/ing morning Mr. Sweetzer, |n company with certain stock agents, had gone to the railway. station, where they found a cow. Mr. Thomson contended that the animal found at the railway station was not the heifer, and that attempts had been made fo forge tattoo marks on the ear of the cow. The auctioneer who had sold the animal h.ad said that Driscole had been present while the sale took place. Later that day, Driscole had informed Mr. Sweetzer that a mistake had been made, and that the correct animal would be taken to the sale the next week. 'Mr. Sweetzer, however, had reason to doubt Driseole's word, and had sent out a stock agent to find the animal. , The heifer could not be found on / Driseole's farm. Mr. Thomson olaimed that Driscole had converted the heifer to his own use, and that in so doing he had eommitted the crime of theft. ■ Giving evidence on behalf of the plaintiff, Donald James Sweetzer, Levin manager of the company, stated that he had instructad a veterinary surgeon, Mr. R. H. Long, to insp.ee t the heifer and had finally come to a settlement with defendant on September 12, when the company had paid Driscole £30 in con^ideration of the heifer and calf. Defendant had signed a discharge form. Under that form the ■company had become the owners of the heifer. He and Driscole had then discussed when the animal was to be handed over, and had decided that Driscole should produce the animal to him at the saleyards on September 23. Driscole had informed him on the evening of September 16 that the heifer had been taken to the sale and sold. Mr. Thomson: Had there been any arrangements between you and Driscole to sell the animal? — Most definitely not. In reply to further questions by Mr. Thomson, witness said that the first thing he did next morning was to go to. Messrs Abraha'm and- Williams, Ltd., and enquire what figure had been obtained at the sale for a two-year-old Jersey heifer sold on behalf of his company. He was informed that no heifer had been sold on behalf of tbe company, but that a cow had. He had then gone to the railway station, accompanied by the auctioneer who sold the beast, Mr. H. R. Keys, and the animal in question had been pointed out to him. He found that the earmarks on the cow corresponded with those oi the heifer given him by the veterinarian * who inspected it on August 14. These marks were ELV on the right. ear and Y20 op,^ .he left. There was dried blood.in1'-'' one of the cow's ear-s. He had then asked the veterinarian, Mr. Long, to see the cow. Continuing, Witness said that he had given instruetions for the cow to be removed to a property nearby. He had than informed Driscole that the cow which had been sold was not the, one injured in the accident. Driscole had maintained that it was. Later that evening Driscole had come to his home and stated that some mistake had been made, proeeeded witness. The drover who had been bringing in two animals had stated that the heifer had given a lot of trouble, and had eventually escaped him. Driscole had offered to bring the real animal to the saleyards the next Tuesday. Witness said he made no. eomment to this. He had then instructed a drover, Mr. I. R. Taylor, to find the heifer. He and Taylor had visited Driseole's farm, and obtained permission to make a thorough search for the heifer, but they had not found it. Mr. Hardie Boys: On the night of September 16. you knew that the wrong cow -had been sold? — On the night of September 16 I knew- a cow had been sold. * On September 17 you found out it was not the right animal? — Yes. (Qontinued on Page 6)

ALLEGATIONS OF FRAUD

1 / (Continued from Page 4) Do you suggest that if you and Taylor had found the heifer on Driscole's farm, you would have left her there? — Yes. Hugh Reid Keys testified that it was his duty *to auction the cattle section for Abraham and Williams, Ltd., at the Levin stock saies. ' He had done this on September 16, and had auctioned a^cow from Driscole on behalf of the N.I.M.U. Driscole had been present and had been leaning over the rails lookrng at the cow, which was approximately six feet from him when it was auctioned. It had been sold for £5. The following day acc'ompanied by Mr. Sweetzer, he had gone to see the cow he had sold. His atterntion was drawn to the tattoo marks on both ears. He could not say what they were. Shown the saies form by Mr. Hardie Boys, witness said that "one store cow, empty," was not an apt description of the cow sold. The ■animal he had sold had been about five years old. Raymond Hector Long, veterinary surgeon, said that on August 14, on behalf of the N.I.M.U. Insurance Company, he had inspected a Jersey heifer and made a note of the earmarks. On September 17 he had inspected another cow, but it was not the one he had examined previously. The tattoo marks on this latter animal had not been made more than a week prior to his examination of it. Questioned by Mr. Hardie Boys, witness said that when he first saw the heifer it had an even chance of surviving its injuries. Knowing the condition of the animal he would assess its present value at £6 10s. Referring to the cow, Mr. Hardie Boys asked witness if he would believe that it had been earmarked 17 days before he had seen it on September 17. Witness admitted that it would be possible. Harold James Lancaster, Jersey breeder, of Levin, gave an explanation of the meaning of' the earmarks. ELV were the letters which comprised Driscole's herd brand. The .letter indicating -the year was Y, which would be 1945. The number 20 was that of the particular heifer. It would not be possible for Driscole to have two animals with the same earmark. Every animal should be registered before it was twelve lhonths old. He h^d inspected an animal on a property near the saleyards and had found the earmarks ELV and Y20 on its right and left ears. He thought the^ earmarks recent. He had inspected the cow's teeth and took its age to be about six years. Driscole should have known that no Jersey breeder could have two animals with the same earmarks. Frederick James Fanning, stock agent, said in his evidence that on September 16 he had purchased one cow from Abraham and Williams, Ltd., for Thos. Borthwicks, Ltd., for whom he was ag,ent. In reply to a question from Mr. Thomson, witness said it was unusual for animals bought at the sale not to be sent away overnight. His reason for not doing so on September 16 was that he had not had enough stock to make a full truckload. Cross-examined by Mr. Hardie Boys, witness said he had asked Abraham and Williams, Ltd., to delete the animal from the books. This had been done Ian Richard Taylor, farmer and drover. of Levin, testified that he

had received instructions from Mr. Sweetzer to collect a heifer. He had later seen, Driscole and informed him that he was . going to get it. This had been on the Thursday. Driscole had said that it would not be convenient that night, and that he was going to Palmerston North on the following day. On the Friday he and • Mr. Sweetzer had obtained permission to look over Driscole's farm for the heifer. They had not found the animal. On the Saturday he had, seen Driscole and, acting on instructions from Mr. Sweetzer, had refused to take possession of the heifer.' For defendant, Mr. Hardie Boys contended that Driscole had a firm contract with the plaintiff company to deliver a heifer to the Levin saleyards on September 23. This had been done and the company had refused to take possession of it. He submitted that there was no such thing in law as damages for attempted fraud. He stressed the fact that the company had refused delivery of the heifer. Mr. Thomson: Only after the summons had been served. Mr. Thomson then asked the court for examplary damages. In givlng judgment for the- plaintiff company, the magistrate described Driscole's action in attempting fraud as contemptible. He did not have power to give plaintiff more than the actual value of the heifer at the time of the "ring in." He would, however, accept Mr: Long's evidence in putting its value at £6 10s, and would allow full witnesses' expenses against Driscole, totalling a further £6 11s, and court costs amounting to £2 9s, making a total of £15 10s.