COURT OF APPEAL

Dominion, Volume 8, Issue 2440, 20 April 1915, Page 9

COURT OF APPEAL

A SHOWMAN GUILTY 'A sitting of the Court of Appeal was held yesterday, when, several reserved decisions were given. His Honour the Chief Justice (Sir Robert Stout) presided, and associated with him were Their Honours Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Kdwards. Judgment was first given in the case Rex v. Wm. M'Leod. In this case Win. M|Leod, ivho goes by the name of Captain M'Leod, was, 011 December 7, performing as aa expert shot at a show in the Wailiato, and Leslie Wilson, a young man of the district, consented to sit in a chair while M'Leod shot the ash off the cigarette Wilson was smoking. M'Leod fired, and the bullet went through Wilson's cheek. M'Leod "was tried in the Supreme Court for: (1) As r sault so as to cause bodilv harm, (2) assault, (3) causing actual bodily harm. The jury found the following answers to_ questions put to them: —Was the prisoner an expert shot?—" Yes." Did he fire at Wilson with the full consent of Wilson?—" Yes." Was the wound dangerous?—" No.". Did Wilson move his head after being placed in position by M'Leod, and before M'Leod fired? — "Yes."

The Court of Appeal was asked if, upon these findings, M'Leod was guilty of any one of the offences charged against him, aild the decision of the Court was given yesterday that he was guilty on the third count of the indictment. . i The Attorney-General (the Hon. A. L. Herdman) appeared for the Crown. M'Leod was not represented. An Aocldent Insuranoe, The appeal was upheld in the case Thomas Scott Johnston, station manager, of Glenmark, Canterbury, v. the Ocean Accident and Guarantee Corporation, Ltd. Particulars of the case were that on October 21, 1912, DouglasGraham Johnston, a stock agent in the employ of Dalgety and Co., Ltd., died at Cliristcliurch as the result of an injury caused by an accident. Some tiir.e prior to that date Dalgety and Co. had taken out a personal accident policy for £400 with the Ocean Accident Co. to cover the deceased (Douglas Graham Johns-ton) while he was in their employment. The premiums from time to time had been paid by Dalgety and Co.. and the.policy was in force at the time of the death of the deceased, but the accident, resulting in death,. was admittedly not an accident in the course of his employment, and therefore Dalgety and Co. had incurred no liability thereby. The deceased had signed the proposal for insurance, but be had never paid any' of the premiums himself, nor had he ever taken possession of the policy, which remained in the hands or Dalgety and .Co., who ,subsequently handed it to tho appellant (Thomas Scott Johnston), a son of the deceased. In September, 1913, Thomas Scott Johnston proceeded against the respondent company at Cliristcliurch to recover the death benefits (£400), due under the policy. The respondent company denied liability, contending that they had no contract of insurance with deceased or his heirs, and that, as Dalgety and Co. had 110 claim under the policy, there w»s 110 liability of any description resting on the respondent company. His' Honour Mr. _ Justice Donriiston, who heard the claim, gave judgment for the respondent company in October, 1913, holding that tho policy was the property of Dalgety and' Co., who had no- claim on the respondent company, because the accident, which resulted in the death of the assured, did not arise in the course of his employment; that, the policy, so far as Dalgety and Co. were concerned, was entirely a policy of indemnity ; and that the appellant (Thomas Scott Johnston) had 110 olaim on the respondent company. 1 From this decision Thomas Scott Johnston appealed, on the ground that it was erroneous in law and, faot.

In the cpurso of the judgment the Court held that they could only assume that Johnston considered he was insured for £400 in the'ease of death, or £2 per week for injury. To their minds Dalgety and Co. were acting the part of good employer's, and going beyond what was neccssary to cover their own risk. The Court therefore held that the defence set lip was not proved, and tho appeal was allowed, with costs on the middle scale, with costs in the Supreme Court as per scale, with witnesses' expenses and disbursements to be fixed by t'h& Registrar at Christclmrch. . . Mr. M. j. Gresson, of Cliristchurch, appeared for the appellant, while Mr." H. D. Bell, K.C., with Mr. E.'J. Fitzgibbori, appeared . for the respondent company. APPEAL TO PRIVY COUNCIL. The Court also allowe'd the appeal in the case Wm. Ashton Chambers and the Hawke's Bay . Farmers' Cooperative Association, Ltd., v. the Phoenix Assurance Co., Ltd. The appeal was from a decision of. His Honour Mr. Justice Denniston, delivered at Napier in October last, and involved an important point of insurance law. Chambers was a builder in business in Waipukurau, and early last year he was engaged in effecting alterations and additions to the Hawke's Bay Farmers' Co-operative Association's store in Ruataftiwha Road, Waipukijrau. In order to cover the premises in the event of loss by fire, Chambers took out a policy of insurance with the Phoenix Company. This policy was made out "to cover interest as builder," but both Chambers and the Hawke's Bay Farm"oi's* Association understood it to cover the premises from any loss by fire, and the insurance company's • agent in Waipukurau believed that it would cover the interests of botn Chambers and the Hawke's Bay Farmers'. Association. On March 18, 1914, a fire occurred on the 'premises, and the loss was estimated at £1043 14s. 4d. Chambers and the Hawke's Bay Farmers' Association claimed this, amount from the Phoenix Company, but payment was refused on the ground that Chambers had. been insured to cover any loss sustained by him . (in his interest as builder), and that he had been unable to prove to the Phoenix Company that he had sustained any_ loss. The claim then formed the basis of a Supreme Court action, Mr. Justice Denniston holding that the Phoenix Company must succeed in what lio described as a "technical and merlt•less defence." Against this decision Chambers and the Hawke's Bay Farmers' Association appealed on the ground that it was erroneous in law.

The appeal was allowed, judgment to bo entered for Chambers in the Court below, with costs according to : scale, appellants' costs in the Court of Appeal on the highest scale as from a distance. Mr. H. D. Bell, K.C., with Mr. J. H. G. Murdoch, of Napier, appeared for appellant, while Mr. A. W. Blair appeared for the Phoenix Assuranco Company. Mr. Blair asked leave to appeal to tlie Privy Council, and this was granted. THE LICENSING LAW. Judgment was affirmed, and the appeal dismissed (the Chief Justice dissenting) in the appeal from the decision of His Honour Mr. Justice Hosking in the matter of the Licensing Act,. 1908, and in the matter of an objection by Charles Wagstaff to ah application by Ann O'Donnell to the Westland Licensing; Committee for an accommodation license. The case set out that on May 18, 191-1, Mrs. Ann O'Donnell, widow, of- Blackw.ttoiy gayo, notice, to

apply for an acoommodation license, for premises situate at Waiuta, and known as the Empire Hotel. At the meeting of the Licensing Committee on June 10, 1914, the application was called on, and, being objocted to by Charles Wagstaff and the Inspector of Polico at Greymouth, was ordered to stand over until the other business was disposed of. The other business included an application by Thomas Harris for renewal of his existing accommodation license in respect of premises at Humphreys Gully. Mr. M. Hannan, counsel ' for Mrs. O'Donnell, objected to this renewal on the ground that the prcmisos in question had been desorted for fourteen days. Mr. Hannan requested this license to bo forfeited so as to clear the way for the granting of a license to Mrs. O'Donnell. The committee declined to grant the request, and Harris was granted renewal of such license, when Mrs. O'Donnell's application was again called on, the objections wcro repeated, and Mr. Hannan applied for and obtained an adjournment for the application to July G, 1914. A further stage in the proceedings was reached 011 June 24, 1914, when in consequence of the fee for the renewal of Harris's not being paid, the certificate authorising the renewal became void. Then on July 6 the Licensing Committee met and granted Mrs. O'Donnell's license, the annual fee being fixed at £20, hut 110 other conditions or terms being imposed. Following on this, Charles Wagstaff, a resident of Waiuta,' moted in the Supreme Court for an order that Mr. O'Donnell's application should he removed into the Supreme Court for hearing, and that the license issued on Mrs. O'Donnell's application should be quashed and that Wagstaff should be awarded costs. The main grounds for Wagstaff's motion were that the premises, for which the license was granted, had not reasonable accommodation, that the license was not . wanted in the neighbourhood, and that the Licensing Committee had no jurisdiction to grant the application because there was no vacancy in the number of licenses at the date of the hearing of the application. ' After reading the affidavits in support of -Wagstaff's case, and hearing the argument of counsel on either side, His Honour Mr. Justice Hosking dismissed the motion,, with costs ten guineas, and disbursements, to be paid by Cnarles' Wagstaff to Mrs. O'Donnell. Against this Wagstaff appealed on the ground that it was erroneous in point of law.

Mr. C. P. Skerrett, K.C., with him Mr. G. H. Fell, appeared for the appellant (Wagstaff), while Mr. M. Hannan, of Greymouth, with him Mr. F. D. Sargent, of Greymouth, appeared for the respondent (Mrs. O'Donnell). The appeal was dismissed, with' costs on the lowest scale as from a'distance. THE FULL COURT. The Full Court was engaged in the matter oi the appeal from tlie decision of Mr. T. Hutchison,,S.M.; and a J.P. in a proceeding at Wyndham between Jabez Rudolf Whyborn and' David Waters. Waters was proceeded against 011 an information, that, being the occupier of certain land, namely, Block VIII, Wyndham S.D., within the space of six months past, he did fail to clear from the land at the proper season of the year the noxious weed ragwort, contrary to the provisions of the Act. Tho defendant pleaded not guilty/ and after hearing the evidence of the parties the Magistrate dismissed the information: Subsequently tlie informant applied to have a case stated for the opinion of the Court of Appoal. The Magistrate stated a case, and said it was proved upon the'hearing that defendant had failed to clear the land, or some of it, but that' no notice, as required by Section 10, Sub-section 2, of the Noxious Weeds Act, 1S:08,_ had been served upon the defendant prior to the laying of tho .information'. The Magistrate was of opinion that it was necessary in law that notice should be served. ; Mr. J. W. Salmond, K.C., SolicitorGeneral, appeared for the appellant, Decision was reserved.