IMPORTANT JUDGMENT

Dominion, Volume 3, Issue 911, 2 September 1910, Page 9

IMPORTANT JUDGMENT

BURNT SAMPLES. "COMMON CABIUER" v QUESTION. Mr. AV. R. Haseldcn, S.M., delivered an important juitgmeut in the Magistrate's Court yesterday. The case was that, in which H. Price and Co., Ltd., merchants, of Wellington, claimed .£37 18s. ad. fiuiii the A'ew Zealand tixpress Company, Ltd., as value, of traveller's samples, which wero entrusted by plaintiffs' traveller to the defendants us carriers at New Plymouth on July 25- last for removal froni the railway station to the premiss ot AV«st nnd Sons, and which were destroyed by fire whilst in defendant's charge. "The statement of claim," said his Worship, "alleges in effect that the defendants'uro common carriers, arid the plaintiff entrusted certain samples to them, and Ihe defendants negligently put the said goods in a cart-shed, in which they were destroyed by .fire. The goods were sample ■ pictures of a cheap kind, and sample wall-papers, and Tour receptacles such-as. sample case, dress suit case, leather grip, and canvas grip, the whole being valued at .£B7 ■ 18s. 9d. If the defendants received and held the goods as common carriers, it is conceded that they are liable for the loss. "The defendants say that though part of their'business is that of common carriers, they also carry on business other than that of common carriers, and that they received the goods in question as express or hack men, plying 'for hire in the town of New Plymouth.- On the evidence I find that this, is the fact. The defendant's cart or express was on the stand at New Plymouth .plying for hire. It is a licensed express, and is open for hire by anyone, and does not run to' or from any tixeu , points." ' His Worship, after quoting several authorities, felt bound,"for the purposes of tills judgment, to hold that" an expressman in New Zealand plying for hire in a city, at no fixed charge and without any fixed route or termini, is not a common carrier. . -; "The plaintiff argues," said the magistrate, "that even if the defendants weie not common carriers they .were liable under, the special circumstances of this case for negligence The defendants argue that, even if they werecummon earners, when.they received the goods, they ceased to be so, after they had brought them to the place named by the plaintiff,, and then became, inero bailees, involuntary, or of necessity." His Worship was forced to the conclusion that at the time of the destruction of the goods they were held by the defendants as.involuntary bailees. The remaining question then to determine was.whether the goods wero lost through the negligence ot the defendants. His Worship held that on the evidence the- plaintiff tacitly 'assented to. the method of keeping the goods adopted by tht, defendants. Thu bailee took the saino care of the goods as ho took of his own express, harness, and horses, aiu! that care was such as a prudent man would be expected to take. ' 'Judgment was accordingly ■ given for defendants, with the usual costs.- Security for leave, to fixed at .£lO. Mr. W. Arnold.was , for plaintiff, and Mr. Dalziel for defendant;' ■ ■ •