LAW REPORTS.

Dominion, Volume 3, Issue 768, 17 March 1910, Page 9

LAW REPORTS.

SUPREME COURT.

DEFINITION OF TOTAL BLINDNESS. t ■

NOT THE COMMON VIEW,

An interesting definition regarding blindness was given in the Supreme Court yesterday by the Chief Justice, fair liobert Stout, when delivering reserved judgment in the special case ot Falconer John Macdonald, clerk, versus the Mutual Life Association of Australasia, heard on March 10. '

~5 rr ' appeared for plaintiff, and Mr. H. D. BoU, K.C. (with him Mr. E. J. Fitzgibbon), for the insurance company.

At tlio hearing, it .was pointed out that, on September 2, 1908,, Macdonald opened o. tin of cheese at his home, and some liquid matter, which squirted out, set up a. disease m his eye. He was totally incapacitated for a period •of eleven weeks, and also suffered permanent partial disablement by the loss of the sight of the eye. Under an insurance policy, he; claimed .£SO from the insurance company, who, however, denied liability on the ground that there was not total or complete loss-of eyesight. The , company contended that the case was not one of permanent partial disablement, inasmuch as it was admitted by Macdonald that he had "perception of light" by the injured eye. A letter from Dr. Hislop was referred t to, in which it was stated that the injured eye possessed the ability to perceive, in a very blurred manner, the general outline of prominent objects; but there was so much' corneal opacity that the oyo.was.of.no use for . .the. purpose of the assured's occupation. It was of little practical use for any purpose except to distinguish daylight'from dark. In the medical it was not totally blind, but, if the other one were similarly affected, the assured would find great difficulty in earning a living. Counsel tirged, in Macdonald's behalf,, that lie was entitled to, recover the amount claimed so long as there was loss of sight in tho ordinary sense. His Honour decided that, the meaning' of the definition contained in the policy, was suoh that: Macdonald could not re-" cover unless the eye. had completely lost the power of sight. "Perception of light" in the eye meant that total loss of sight did not exist. Judgment was therefore given for the. insurance company, with costs. . A PI.OCK MANUFACTURER'S DAM. Judgment was given by the Chici Justice yesterday in the case, heard on' March 10, which involved the construction of Section G2 of the Land Drainage Act, 19t)8. Proceeding (m an originating summons under the Declaratory Judgments. Act, 1008, John . Bli Ellis, flock manufacturer, of Lower. Hutt, and Edith Dorothy Ellis, his wiip, asked the Court to decide whether the Hutt County Council (defendants) could rightfully enforce an order issued by them that a dam in tho Waiwetu Stream, tho property of plaintiffs, should be removed.: ' ;Mr. C. B. Morrison appeared for plaintiffs, and Mr. A. de B. Brandon ana Mr. Ward for the defendant council, i

Plaintiffs' case was that the dam was situated on the freehold property of Mrs. Ellis, find the business of flock manufacturing had been carried on there Since 1898. . Mr. Ellis stated, in an- affidavit;' that he believed that the council..had ftiyen him notice to removo the. dam; at tho request of -Carl Rasiimssen, owner of the adjoining land, on the latter's • agreeing: to indemnify the council against the cost of any appeal to a magistrate as allowed, by. the Act. The contentions of "plaintiffs wero that they had a legal right to maintain the dam,, and that feuch au, order should not have been issued by a local body, without first , giving notice to the property-holder to be affected, and hearing that person on: the facts and law. . ■ ■

His Honour held that a dam was ! not intended' to bo affected by Section 62 of tho Act, : Ho. did not consider, it could bo included in/'weeds, and other growths, ref uso, '"and • obstructions • of every- ■ kind. 1 ?. If.the;section was meant to includo such a thing as a - dam, why wero the wordd "weeds, refuse, and growth" used in, the. section 1 1 His Honour further considered that plaintiffs should have had notice regarding tba order to be issued, seeing that non-compliance with the Act entailed a lino of per day. Judgment Would, therefore, be given for plaintiffs, with costs. "

SALE OF MARLBOROUGH RUN. • Further hearing of the claim ' for specific performance of an agreement for tho sale of a largo Marlborough sheep run occupied tho Chief Justice, Sir Robert Stout, in the Supreme Court yesterday . morning. rrom the evidence it appeared that the plaintiff, Thomas Morlanu, farmer,, of Eakaia, had paid a deposit of' £500 for the purchase of Birch Hill, a property of 18,800 acres, in the Wairau Valley. Tho defendants were the members of tho syndicate who owned • tho property— l'rederick Hales, Benjamin Coleman, James Broivnlie, John 'Oliver, and Thomas Wilson, gentlemen, of Wellington. Tho plaintiff alleged that, after ho had paid his deposit, and thereby agreed to purchase the property, the price being <£37,G00, it was 6old to a third party, Edrnond Somerville,' shcepfarmsr, of Southbridge. Plaintiff . had tendered a further sum of £11,500, but this had been refused by the owners. He asked tho ' court to order specific -performance of the .alleged agreement,.: The defence was that the offer of the property to pmintiif had been withdrawn ; and rescinded, before an agreement was entered into to sell the property to Somerville. Defendants denied that they. had repudiated any agreement with plaintiff, and they said that "they were desirous of completing whichever contract for sale should ba found by the. council to be binding upon them—either the alleged contract with plaintiff or the contract with Somerville.

r - Ge ?,F Be Harper, yof Christchurch, *■■ Young appeared for plainlyll'' l lr -T?- £r Skel 7 et f| K - c - < witl > liim ? r, r Oteary); instructed by Mr. J. J. MGrath, for defendants; and Mr. T- W. Stinger, IC.C., of Christcliurcli (mth him Mr. P. Levi), for the third party.

Alter hearing the remainder of the evidence, and the addresses of counsel, nis Honour reserved judgment.