LAW REPORTS.

Dominion, Volume 3, Issue 886, 4 August 1910, Page 3

LAW REPORTS.

COURT OF APPEAL. AN INJURED EYE. ACCIDENT INSURANCE CASE. . Tho meaning of certain disputed words In au accident insurance policy was determined yesterday by the Court of Appeal (Justices Williams, Edwards, Cooper, unci Chapman on (he Bench) in the decision on the case of Falconer John Alacdonald v. the' Mutual Life Association uf Australasia. • Tn this case, MacdonaM, who is a law clerk, mado a claim last March against Iho Mutual Life Association of Australasia, under a combined life and accident insurance policy, on account of his having loat tho sight of ,Ins right eye. The , facts, then placed beforo tho Supremo Court were that on September 2, l!) 08, ■vhile ll'Donald was opening a tin of some liquid matter squirted into his eye and set. up a septic condition. jJotlv putties agrcftl to accept tho following report of Dt. Hislop:— Tho affected eye still has "perception of light," and' the ability to porcolvi! In a very .blurred, manner tie general outline of prominent object:;, but there is so.much corneal uiiacity that the eye is of no.iise for the purpose of the ussurod's 'occupation, ufadj indeed, is of little practical Use for any_ purpose, except to distinguish daylight from dark.

Tho case whs decided liy Mm Chief justice (Sir Kobert Stout)- in favour of the company, on the' ground that the meaning of the definition in tho policy was such that Macdonald could not sueueuil, unless the cyu hail coiniilttoly lost the power : of sight. , . ' . Mncdonald then-' carried the case to the Court, of Appeal. ■ . Sir. Justice -Williams gave judgment as follows:—"It is impossible not to syiii. pathiso with the claim of the appellant, but I fear, wo, have no alternative-.but to affirm the judgment.of tli« Court bciow.' Tile reasons given, by his Honour in that court appear to me to be conclusive. The definition in tho policy, of permanent partial.disablement is as' follows:- . • 'The complete and irrecoverable loss through accident of sight of ono cju, or. tlio loss ,hy complete physical separation above .thu wrist or.ankle • of ono himd. or. one foot.' >' -"The'loss of sight must bo complete; that is to assured must be totally' blind of that eyn.bcforo ho comes within the terlns of : tho.;policy. ,The definition does not lend itself ■ to the construction that a partial loss of sight is within it, although for. all practical, purposes the eye may..have become pretty nearly, useless. _ Tho: evident intention of. the definition is to place, an injury, to. the eyo on the same footing as an injury to the hand or foot. There may bo aii- injury to .tho hand, or . foot which, may render- that member. l 'useless for all practical 'purposes, and yet there, is to bo no right to compensation unles there has been, a complete separation; of tho member from tho body. The loss in each case must be absolute and not relative." '. : "

Tho otter Judges , gave separate judKments couuiirriiig with this decision. ; Mr.'Justice Edwards; in his judKment, said that it'had been shown that the appellant hid' enough use of tho injured cyo to «nablo him to avoid collisions with objects in thn. streets, and :hq therefore could not bo said 'to. have suffered complete loss of sight.of that eye. ; Tho words ."complete' and irrecoverable loss of sight" must be literally construed.. Hr.'Justice Chapman,'in the courso of his judgment, expressed the opinion' that under the policy'in'the case the occup.'itibn of tho iiolicy-holdcr 'lirl not roquiro to bp taken ■ into account in a. ciaim regarding permanent partial disablement, though it-would have'to be considered in a claim for total disablement. Thus a watchmaker woiild havo a; claim'for total .disablement for less-injury to his sight than, say, an. aephalter or a paviour. ' - ■. ■. Tho appeal was dismissed with costs on the lowest scale. f ■' " ; : At tho hearing, Mr. P.- J. O'Ecgun apptared for Jlacdonald, Iho appellant, and Mr. it.: Myers and Mr. E. J. Fizgibbon l for the insurance,: companj.' : : ■ ■■', RAILAGE AND FLAX CONTRACT. : TAtO.'O TOTABA COMPANY. ,: Judgment was given by the Court of Appeal yesterday in the case connected with the Taupo Totara Timber Co.'s railway, and a flax contract' in which the company was interested. The Chief Justice (Sir Robert ■ Stout) and Justices Williams and Chapman heard the appeal a few days ago, .but' only the two lastnamed were on tho Bench yesterday. • The appellants (who wore represented at tho ; hearing by Mr. C. P. Skerrett, ICC, and Mr. J. 1,, stout) were the Taupo Totara Timber Company, Ltd., and the Wellington Industrial .Development Company, Ltd.; and the respondents were Michael Lynn and Sebastian George Poppelwell, flaxmillers (represented by Mr. J. -It.-Reed, of Auckland). in the previous proceedings in ' tho Supreme, Court,.-Mr. Justice Edwards had given judgment for the two limited companies on their claim for flax royalties,, etc., and had awarded Lynn and Poppelwell ,£675 damages on their counterclaim for loss of the opportunity of milling flax from adjacent Native land, and for stoppage of their mill, euch loss and stoppage being concerned with the railage of flax and fibre on the railway owned by the timber company. It was against this judgment in tho. counter-claim that appeal was-made. ■'• ■; , . .'■■•■

The Chief Justice, in ' his judgment (which was read 'by Mr. ; Justice Williams), held that the branch of the respondents' case concerned with the Native flax must turn entirely on Section 13 of the agreement between the parties. That section was as follows:— .•'■•.. .- In the event of the - purchasers making arrangements with tho Native .or other adjoining owners for; the purchase of their , flax on the adjoin- ■• ing. lands, then and. beforo each flax shall.be dressed or milled,in tho purchaser b mill, situated on the companies' land, the purchasers shall ' inform the companies of their desire so to dress such Native 'or other flax, and it shall be at the\option of tho ■ companies to. refuse their permission ;to the dressing or milling of such flax, and such permission, if given, may be subject, to such conditions as ,the

companies may impose with regard' ■ to' the same. ■ ■ . These words (Ms Honour stated) showed that the .respondents could not dress Native flax at the.mill or other flax received from other owners without the company's permission. The words were express. The words were also express to show that, if such permission ■ were given, it could be given subject to such conditions: as the appellants might impose. They could have demanded a royalty on the flax, and he saw nothing to prohibit them from demanding also that the railage on the flax should be. such amount as,they considered fail , . Now; it had not been suggested that permission ever was given to them to mill Native flax, or to hring.it oh the.mil! site. Although the counsel for the respondents had urged that there was tacit acquiescence, his Honour could find no evidence of that. It was urged that the advertisement could be invoked to show that there was a proviso that tho company would carry the flax, but the advertisement made no such statemenf. The advertisement said that • the. ,flax might be obtained, and gave its area, but the draft agreement, which was signed before tho agreement, pointed out that no' Native, flax might be milled without the permission of the company. Tho advertisement could not, therefore, be imported into Hie agreement to modify its terms. In his opinion, therefore, it was unnecessary to consider.. anything further, ' so far as this .branch of tho case was concerned, as there was no acquiescence and no „ permission to mill tho flax. What the company 'offered- ,was that they would carry tho flax, if £i n ton was paid them, but those terms were not accepted. This disposed of; the respondents' claim.for loss of profits on Native flax. Tho other claim was for ,£45 for.the stopping of the mill, by not supplying vans for the carrying away of the fibre. This claim was not heard of until it appeared in the counter-claim, and in his opinion ft is without any validity. That

the.mill was working to its lull capacity and the flax was removed by the appellants was proved in evidence. Justices Williams and Chapman expressed their concurrence in separate judgments. Tho'appeal was allowed with costs.

"HABITUAL CRIMINAL." AMENDMENT OF LAW REQUIRED. An important interpretation of tho law regarding "habitual criminals" ' was given by the Court of Appeal yesterday, in , the case of the King v. Thomas John Lewis.

The defendant was convicted at Auckland in February, 1908, on two indictments— (1) forgerv and uttering and attempted false pretences, and (2) theft. It was stated that he had previously been convicted four times on indictments of offences within Class 2, as denned by: Section 29 of the Crimes Act. Prisoner admitted these offences, and was declared an habitual criminal by Mr. Justico Edwards. It was " afterwards discovered that, owing to ■ a clerical error, two previous convictions of the prisoner before a Magistrate for theft had been entered as convictions on indictment. Hence, when the prisoner was declared an habitual criminal he had mot been convicted upon indictment on four occasions of any of the offences mentioned in Class 2. Ho had, however, been convicted four times of such offences—twice before a Magistrate and twice upon indictment. Mr. Justice Edwards, therefore, asked the Court of Appeal to decide whether prisoner was lawfully declnred an habitual criminal.

The Court 'of Appeal, with the Chief Justice (Sir Robert Stout) and Justices Williams, Edwards, Cooper, and Chapman on the bench, heard the ease last week. The Solicitor-General Qlr. J. W. Salmond) appeared for the Crown. The prisoner was not represented. The Chief Justice (whose judgment was read'yesterday, in his absence, by Mr.' Justice Williams) held that tho law as it stood involved an ■ anomaly which required immediate alteration. -Ho had scino doubt about its meaning, but he did not think the Act could be read in any way,but that there was power in this case to declare the prisoner an habitual criminal,- and that declaration , must stand. Tho other judges expressed their agreement with this decision, and tho judgment of tho Supreme Court was therefore confirmed. . ZOO LIBEL CASE. . FINAL LEAVE TO APPEAL.' ..A further step was taken in tho.Court of Appeal yesterday in connection with the libel case, A. E. L. Bertling v. John Norton, in which the Court of Appeal had confirmed the refusal of the Supreme • Court to grant a new trial. Mr. Dunn,' counsel for the defendant, said that the Court of Appeal had granted provisional leave to appeal to the Privy Council, and ho now' wished to apply for a final order of leave to appeal, conditional on the appellant Norton finding security of J2500 as fixed by the Registrar. He made the application at onc«, lest ho should otherwise. require to make it when the Court of Appeal was not.sitting. . . . . - ' Mr. F. B. Sharp (for Bertling) consented. ' . ■ ' , The order was granted. . ■

COURT.

SUCCESSION TO NATIVE LAND. ' LAW OR CUSTOM? T)i* Full. Court yesterday gate its an swers to questions stated by the Native Appellate-Court, as arising out of succession to tlie estate- of a deceased Nativu woman, of. the Gisborne 'district, named Huui Willoughby, ivliau Honi Whakaaeiungn. Justices Williams, Edwards and Chapman were on the bench, and' the judgment of tho Chief Justice (Sir Robert. Stout) was: read by, Jlr.'-Justice. .Williams. ■ ■ .

Tho legal aspect of the case hnd refercncG to the relative authority of statute law. and Maori custom in matters of succession to lands owned by Natives. On the personal side the issue was as to whether the extensive landed property of the lato, Mrs. Willoughby should go mainly to her husband or her brother. ■.'■'.■" In.Hay, 1900, Henry Willoughby,. 'a white man, married a Maori womau named Heui Whakaaetcnga, and she died in November, 1909. Sho mado a will and left some personal property and bouio landed • property. Her landed property was ofiour kinds, according to the way tho Native Land Court looks at lands belonging to Maorisfa) Freehold' land acquired by her in exchange or purchase from Europeans; (b) land acquired by her by ancestral right, being customary land as defined by tho Jiativo Land Act* 1894; (c) freehold land acquired as stated in tho second class, but for which she holds Crown grants or Native Land Court orders entitling to Crown grants; (d) freehold land granted under the Poverty Boy Grants Act, 1869. . ■ ■ ■ .

Tho Nativo Land Court had awarded the lands with the small exception of those in class (a), to the brother,-hold-ing that Nativo custom was applicable to lands" acquired by ancestral right, and that Native custom did not provide for the succession of -a ■' widower or widow. Had ' the ordinary law of tho Dominion applied (the Court pointed out), the matter would havecomn imdcr tho Administration Act, 1908, which provides that two-thirds of the estate shall go to the husband, if he is a European. On Willoughby appealing against this decision the- matter came before Chief Judge Jackson Palmer, and Judgo ■ Gil-fedder,-,in the Native. Appellate Court, and they stated the following questions for the opinion of. the Supreme Court. .

(1) Who is entitled to sneceed to the three classes of land above, referred to respectively as (b), (c), -and (d),; the Appellate Court having found as a fact that there is a native custom applicable, to each of the said-. classes, of land; and. that according to such custom the respondent is entitled to succeed. (2) With reference to the succession ' to tho class of land marked (a), and to the personal estate, the Court desires to leave open- the position as to ' whether or not there is a Native custom relating to the said class of land and the said personal .property, and the Court desires.the opinion of the Supreme Court as to whether, if the Court is of opinion that there is a Native custom in respect of tho (succession: to such class of land and such - personal property, the appellant or respondent is entitled to succeed. When these questions were argued before the Full Court the appellant, Henry Willoughby, was represented by Mr. C. l>. Skerrett, K.C., with him Mr. C. B. Morison, and the respondent Penapa Waihopi (brother of the deceased) by Mr. L. T! Burnard, and Mr. Hei, both of Gisborrie. ■

The Chief Justice, in his judgment, as delivered yesterday, .said the question raised,, though not directly put in the case, ira-j whether a European husband married to a Maori woman was entitled under the Administration' Act to the share of his wife's landed property he. would be entitled to if his wife'had been a' European.. The case had been argued as if there was somo law prohibiting the Native Land Court, from finding ray Nativo custom attaching to succession of Native land, once the title to Native land had been ascertained and a Crown grant issued in pursuance .of such ascertainment. After an examination of Nativo land legislation prior to the death of Mr. Willoughby, his Honour said he saw no warrant for such a view. He held that it «rjs for the Nativo Land. Court to say if there was it custom of succession and if it said so, the matter was settled. In regard to the lands granted under tho Poverty Bay Land Grants Act, he failed to see why Native custom should not ntittch to tho succession of' such lands. • ■ •

"I am of opiriion," cohohulcd his Honour, "that the first question should bo nnswere<l:_ Tlie person who according '"to Maori custom is tlie successor, tho* Court-having found there is a custom applicable to tho descent of tho lands of the classes named; and tho second: That if the Court finds there is a Maori custom as to snecession of sucii lande, then the Court should act in accordance with 6hc.li custom, hut it no Maori custom exists, then it should act in accordance with the ordinary law as to succession in Ise-w Zealand."

The decision of tho other Judges, as expressed separately, were in substantial agreement with that of the Chief Justice. Mr. Skerrott asked for special leavo to appeal to tho Privy Council, on the ground of tho great general and public importance of (he ease. Mr. Justice Williams said that what the Court had done was not to deliver a judgment, but rather to give advice, which was sought bv the Native Appellate Court. H was, therefore, impossible to grant leavo to appeal. The Court would have granted it if it had been possible to do so. Mr. Skerrett said he had not expected anything more satisfactory than such an answer to his application. Mr. Justice Cooper remarked that appeal could be made from tho decision of the Native Appellate Court to tho Privy Council. A'TWENTY-SIX FOOT STREET. CITY'S CASE FAILS. The Court of Appeal has decided against the Wellington City Council on ■the question of the proper boundaries of Wingfield, Street, Thorndon.' Tho judgments of Justices Williams, lidwards, Cooper, and Chapman, who heart! tho appeal a fortnight ago, were delivered yesterday. They agreed in reversing tho decision given in tho Supreme Court I by the Chief Justice.

Phe City Corporation, as plaintiffs in the original proceedings, had claimed that a strip of land, 42.42 links by 4.7 links, beiug portion of AVingfield Street, had been wrongfully included in Mrs. Italia Corich's certificate of title as owner of part of section 534, and had been unlawfully fenced in as part of the; propory owned by her. The decision of the Chief Justice we(s that the Corporation was entitled to the laud mentioned as part of the street. It was against this judgment that Italia Corich, the Government Insurance Commissioner (mortgagee ol the land), and tho District Laud Registrar successfully appealed. Airs. Corich and the Government Insurance Commissioner were represented at the "hearing in the Court of Appeal by Mr. R. C. Kirk; tho District Land Registrar by Mv. C. 1 , . ■ Skerrett,. K.C., and the respondent corporation by Mr. J.'O'Shea, City Solicitor.

Mr. Justice Williams, in his judgment, reviewed the history of AVingfield Street from,its oiiginul laying-out in the year 1858, and went on to. say that if the corporation's claim wero well, founded, tho result would bo that the appellant and other owners, notwithstanding 'fifty years' occupation, would have to givo up the four feet and pull down any buildings or erections that might be standing upon it, without being entitled to any compensation. In the abovo circumstances it certainly lay upon the corporation to show that tho four feet formed part of a highway. Nα doubt, if they were once part of n highway, tho

maxim "once a highway always a highway" would apply. The- thirty feet road, of which tho four-foot strip was a part, did not become a highway when first pegged out, nor could it be inferred that there -was' then .any intention or offer on tho- part ■of tho owner to dedicate it as a highway. The four feet strip was never used by the public as a highway. When public money was first spent on WingSeld Street, in 1567 or ISlis, the four l'cet strip had ceased for niuo or lon years to form part of the street. . No public money had ever been spent on tho four-foot strip, nor hail the ' public 'ever used it. Where the owner of a private road stood by and allowed public money to be continuously npeijl: on it, the inference was that ho intended to dedicate it; and that the public had accepted tho dedication. If the facts led to the conclusion that tho owner assented to the dedication of the twenty-sis feet road they aleo led to the conclusion that he did not object to tho occupation by his purchasers of the four-feet strip. Further than this, there was no evidence of any acceptance by tho public, or by tho City Corporation on behalf of the public, of a. road 39 feet wide. When the corporation first took charge, the road had been'for years only liG feet wide. Tho corporation had nothing before them to show that it was ever intended to be any wider, and they novor treated it as any wider. In order for tho corporation to succeed they must show that at some time or other the four-feet strip had formed part of a highway. This, in his Honour's opinion, they had failed to do. He thought, therefore, tho appeal should be allowed- ' _ .••._.

justices Edwards, Cooper, and Chapman ' delivered concurring judgments. The appeal was allowed'with costs.