LAW REPORTS.

Dominion, Volume 3, Issue 885, 3 August 1910, Page 9

LAW REPORTS.

SUPREME COURT,

THE DIGNITY OF THE COURT. UPHELD' BY THE JUDGE. The dignity'of the. Court was. upheld by Air. Justice Cooper in connection with ono of the cases that was mentioned in Chambers yesterday. The name o! Sir Kenneth Douglas appeared ou the list as counsel to move tor relief against forfeiture in the case of D'Orident v. I'letcher, but us neither he nor any substitute ivus present when the case was reached, it was passed by. Mr. Arnold (of Sir Kenneth Douglas's office) entered soon alter, and when the matter immediately in hand had .been disposed of, he asked the judge to Meal with the motion, stating, as a reason for not being present before, that he had had to appear in u case in the Magistrate's Court.

His Honour said that was no excuse. The Magistrate's Court should not be given precedence before Supreme Court work. The motion would have to wait until the other business on the' list had bean disposed of. ' . When all the other matters. set down had been dealt with, Mr. Arnold again rose to make the application, but was stopped by .the,judge, who stated that Mr. Arnold could not. be allowed to act in a motion against forfeiture, as ho was only a solicitor—not a barrister. It would bo necessary for a counsel to act in such a matter. Mr. Arnold had better ask Sir Keiineth Douglas to come himself. • ■ '

jlr. ;'Arnold said he .had supposed that a solicitor could act, as .it was a simple matter, and in Chambers. Mr. Toogood intiinatcd that he had been instructed to appear for the other party. ■ . His Honour said that he could not. allow Mr. Arnold to appear, as a matter of principle. The 'motion was to maku a finding order settli.ig the rights of parties, and such a thing whs a matter for'a Banco sitting. It should not havo been set down to be taken in Chambers. He would take it at his next sitting in Bauco. ■■,■■•■ . * :

UNUSUAL APPLICATION. An application* of a somcivhat unusual character was made,by Mr. P. J. O'Kegan in Chambbrs yesterday. Ho stated thut a young man named Reginald Watts was killed .last June by falling- down the shaft 'of the Energetic. Mino at lieefton. The claim of the parents for. damages as partial denendents had .been settled by arrangement, and the parties had agreed that administration of the estate should be sought; with a view to- thb defendant being discharged from all, further liability/Counsel desired leave to.administer in Wellington for the sake of convenience. The accident occurred in the Westland judicial .district, the parties resided in the Canterbury district, and their solicitor practised in Wellington. Mi;. O'Eegan submitted that, as' the Civil Court' gave discretion to the judge to waive the , strict letter ' of tho ■ rules thereof, it was within his Honour's jurisdiction !to allow administration in Wellington. •'" .•'•. . ■"-.■■ . \ Mr. Justice Cooper said ho would take time to'consider the matter.

.-';"- AN- AKBITEATOE'S AWAKD. Jlr._ it.-Buddie; for the defendant in the case, of Jarats Aloysms Walsh, of Fahiatua, v. Francis Collins Tumor, of Kketahuna, anplied in Chamtes' yesterday for an order to enforce the award of an arbitrator. ■ A question in "dispute between the.parties'had beeii referred by the parties to arbitration, and tho defendant had been awarded jCI7S as costs; and disbursements. Mr. Justice Cooper granted leave to the defendant to enforce the award in.the same manner as a judgment of the Court.

MAGISTRATE'S COURT.

(Before Mr. W,. E. Haselden, S.M.) MEDICAL MAN'S CLAIM FAILS. ■• ;.AN INTERESTING CASE. • ' Eeserved judgment was given in the case of Dr. P. Mackin v. Andrew Sellars, licensed of the Clyde Quay Hotel, a claim for £$ 65., inedical expenses incurred in attendance upon an .employee., of. the defbndaut.' 'V.-. •> ■ .'.■.' ■;' . ' ,

.Plaintiff's case- wns that he was suminoned to attend a man* named Willis, employed at the. hotel,, who had burnt his foot with caustic soda. Willis was ordered to the hospital,' but could not obtain admittance, and-40 returned to the hotel/ Plaintiff attended Willis for some -weeks,' and■ on learning that ■ the potieht Viis not insured,- be informed defendant that ho (defendant) would bo held responsible for medical expenses. Defendant on the other b.-ind contended that ho had not given authority to anyoho to summon Dr. 'Mackin. He had only just taken over the Clyde Quay Hotel, , and was not present at the time of the, accident, unci tlitt siirvaut wiio telephoned for the.doctor did it on his own responsibility. -.'':' His [Worship said that it was admitted that then*, was - nu iui[ilied; duty K'stiii-,' on an employer to supply his servants, with medical attendance and medicine when the servant was injured the" coursa of his employment. Plaintiff could 'therefore only 'succeed by proving an express or implied contract with, defendant to. pay for his services. There was no evidence of/an express contract, and the onus lay ..on .plaintiff to prove an .implied one.' No doubt. plaintiff was under, the impression that itefendaiit .had implied)}-, agreed to accept liability, but in face of the rotiniitluij ntutumwnts nt the Darties, it was inlpossible to say that tho conduct of the ; defendant under the circumstances amounted.'. to: acquiescence in. the pluiulill's proposals and - agreo. ment to accept. liitbility. Plaintiff .must, be non-suited'without costs.

Mr. P. J.' O'Eegan appeared for plaintiff, and Mr; J. J. M'Grath' for defendant. . '".';'. : •■' . .••;.:.\ : .- A.NUli'si: NON-SUITED. Helen Diinning, nurse, sued John !». Waters, -tramway' employee,, for tho sn/u of £i 10s., for an alleged breach of; contract on the port of defendant. Mr. A. Jl'air appeared for plaintiff, and'Mr, Fitzgibbon for defendant. •. Plaintiff's case briefly was that defendant (through his wife) engaged plaintiff in connection/with ■ his wife's accouchement on or about March IS last. Plaintiff .changed her residence several times, and defendant's'■ wife became dissatisfied in consequence,". and engaged another durse. Plaintiff submitted that she was ready and willing, to. carry out the contract, and her claim was for loss of time at.i£2.ss. per week. ■■,;.■

After hearing the evidence of plaintiff only, his Worship said that there was _no proof that .she.' was entitled to damages, and therefore gave judgment tor defendant, with £2 Bs. costs. . UNDEFENDED. Plaintiffs were awarded judgment in.the following undefended cases:—Stewart Timber,. Glass, and. Hardware Company, .Ltd., 1 v; Jacob Moses, £3 19s. Id., costs 65.; Australian Kodak, Ltd., v. Henry Phillips, 10s. Cd., costs £2 145."; John Harold Kemp v. Cardino Wallace, £5 15s. Gd., costs £1 6s. 6d.j Charles Jones v. John Donaldson, £H, costs £1 10s.' Cd.; H. Oscar Ilewett and Co., Ltd., v. Patrick O'Shea, *J3 7s. 6d., costs 125.; same v. Thomas William Welch, ,£3 10s., costs 10s.; Thomas Bruce v. Walter Smith, £2 9s. 2d., costs 10s. ~:• ■ '

'JUDC4MENT SUMMONS. In'the judgment summons civ'so of Bates and Loes v. Charles K. Anderson, a claim for ,£'l2 10s., defendant was ordered to pay the, amount on or before August IG, in default twelve days' imprisonment. INDUSTRIAL , CASES. (Before Mr. W. R. Hasclden, S.JI.) LINESMAN OK ASSISTANT? The Wellington-Electrical Workers' In(lu'sJTinl Union of Workers took action against the Wellington City Corporation, claiming two penalties of i.'s each for alleged breaches of Uio Wellington Electrical Workers' Industrial Agreement. The statement of claim set out that defendant corporation ■ employed a man named Charles [Turner on February 28 as a linesman, and again employed him on March 1 in the same capacity, without paying him the wages stipulated in the

agreement. Mr. Fitzgibbon appeared for tlio union, and. ilr. U'Shea ior the City Corporation. , Mr. Fitzgibbon said tbat the- union dm not desire to presa ior a heavy penalty, but wero anxious to secure an' interpretation of .the classifying clause of the agreement Under the agreement between the- union and tlio City Corporation there- ivero two classes of worklinesmen's work and linesmen's assistants' work. In the case now before the Court, Turner had performed work, but had only been paid assistants wages. Charles Turner stated tbat he was cmployed by the -Wellington City Council reconnecting and soldering joints in a house-in Matai Koad, Haitaiti. This was linesman's work. Ho was also employed at a house in Ovorton Terrace, Hamuli, cutting mains and dismantling transformers. That was linesman's work. too. He was classified as a "linesman's assistant, and in both cases took his orders from Mr. Winter, his superior. Arthur Henry Winter gave evidence to the effect that the work performed by Turner at Haitaiti was linesman's work. For the defence Mr-. O'Shea stated that all the work done by assistants and linesmen was actually linesmen's wort but the- responsible seniors received higher pay. .In this case Turner had been working under the direction of Winter. Mr. Fitzgibbon contended that it was the work and not the men that formed the true- subject of classification. His Worship, in reviewing the evidence, gave weight to the fact that Turner was under the control of a linesman, arid was consequently rtfally an assistant, and not a linesman. That f applied to both cases. Judgment was given lor defendants with costs .£1 Is. COACH WORKERS: INTERESTING POINT. The Wellington Coach Workers' Industrial Union proceeded against the Rouse and Hurrell Carriage Building Company, Ltd., of Wellington, for a penalty of £t> for an alleged breach of the coacn workers' award. Mr. Fitzgibbon appeared, for the union and Mr. H. Mac-hell for the defence. ' The union claimed that the defendant company had employed a man named Walter Cumming, a non-unionist, at a timo when a unionist named Henry Moir was out of employment, and quite competent to do tho work which defendants required. ! It was contended for the defence that the work was of a nature, which Moir could not satisfactorily perform;; and that Cumming was the only suitable- man available at that time. , ■ . Several, witnesses were called by the union with a view to prove that Moir was competent to do the work in question. . ' . On the other hand, witnesses called for the defence stated that Moir-could not 'do this work to the same standard of efficiency as Cumming. .His Worship, in giving judgment said thut if employers can distinguish between tradesmen to tho extent contended in this case, it seemed to him that the preference clause in the award would be rendered. entirely ' nugatory. If tho employer preferred. Cumming to Moir-he could have advised Hie former to join the union, and then h> (Cumming) could lawfully .have been preferred. He thought that a breach of the award had been committed and imposed a. penalty of £2,. with £2 17s. costs against plaintiff. '-. Leave to appeal was granted. ~ POLICE CASES, ,■• - (Before Mr. W. G. Riddell, S.M.) -• A STOLEN BICYCLE. - . Ernest William M'Cardell, a young' man, was charged with theft of a bicycle valued at £5, the property of H. Barrett.' Accused pleaded guilty. : Chief Detective Droberg informed the Court that on the N evening of .April 8, complainant attended' a bazaar in tho Sydney Street' schoolroom. It was :on that occasion that M'Cardell took tho bicycle. Ho rode off with it to P'orirna where ho was employed at a racing stable. Subsequently he left for Sydney, but was arrested on his-return. In'the meautime some companion of his had used the bicycle extensively and it had suffered damage to the extent of 275: (id. ... <■ ■ JTis Worship said.that, as accused had pleaded. guiity,...and_.had._borne .a good, character, he proposed to give him another ohnnce. Ho Y would be convicted and ordered to come up for sentence when called on, and would. also:be .required to pay to complainant £1 7s. Cd., the cost of tho damage.done. '. ■■■ . , .;. . "FRENCH LEAVE." -. ' Charles Tocher Duncan, an articled seaman on' the steamer Rimutaka, who absented himself without permission, was ordered to forfeit two days' pay, and also to pay Court costs 7s. The alternative was JS hours' imprisonment. . . ■ '. INSOBRIETY. John Harrison, who caused some excitoment'iii the New Commercial Hotel .on Monday evening by brandishing a ■knife, while in an intoxicated condition, was remanded to August 0 for curative'treatment. . The police stated that accused had been drinkirig heavily for tho past three weeks. ■ • i- Jane Walsh, previously convicted .of insobriety, was fined 10s., with the alter, native of 49 hours' , imprisonment. Fivo : first-offending inebriates wero each fined- 55., with an option of 24 hours' imprisonment.