MAGISTRATE'S COURT

Dominion, Volume 12, Issue 157, 28 March 1919, Page 5

MAGISTRATE'S COURT

CIVIL ACTIONS LIABILITY OF CARRIERS A decision of interest to eiirrierTwas delivered by Mr. W. G. Riddell, S.it., at the Magistrate's Court Yesterday ill an action in which the question at issue was: What is a common carrier? The e.ise was one in which Hobart Norman Uren sued W. IT. Matthews, carrier, of Island Bay, i'or the sum of l'2s. 9d., damages for' the loss of a portmanteau and conPlaintiff said that defendant was a common carrier in the city of Wellington, and that on December 9. 1918, he entrusted to defendant a leather bag and contents, to be safely carried for reward from 1G Mersey Street, Island Bay, to 8 Shannon Street. Defendant failed to deliver the bag, and plaintiff therefore claimed £38 12s. !ld.. being the valuo of tho bag and contents. It was proved that the leather bag was placed on the top 01 other goods on defendant's express and covered over and tied before leaving Island Bay. When proceeding up Hawker Street, near the end of the journey, defendant found that his liorse wan unable to draw tiie loaded express unaided, and he obtained permission from plaintiff, who had overtaken him. to get another carrier to tako part of the load to Shannon Street. Defendant' left his horse and express unattended in Hawker Street till he found another express. Un his return part ot tho load was transferred to the second evpress, and both then proceeded to plaintiff's residence in Shannon Street, where tho was delivered. After <lei«uiant had driven away plaintiff discovered that his leather bag was missing. Plaintiff' notified defendant of the loss as soon as ncssib'e, as well as tho police, but no trace of the missing bag was ioundWhen defendant was engaged bv p aintut ho handed plaintiff a card on which were printed the following words: U. W. Matthews, City and Island Bay, carrier." Defendant was a licensed expressman, and plaintiff submitted that defendant was a common carrier and as sucn was an insurer of goods carried and must ho held liablo for the loss of the bag and For defendant it was argued that ho was not a common carrier, but merely a carter of goods, who made a . contract with each peson who wished to "ire lus express. In Halsburys Laws cf England" it was 'Stated that "Any person who carries' goods or passengers for hire, or gratuitously, by land or water, is a carrier, but a common carrier, exercises the public employment of carrying goods. A common carrier is one who holds Himself out as being ready for biro to transpart from place -to place the good* ot anyone wishing to employ him. it is essential that ho should _ undertake to csrrv for all persons indifferently. It was stilted further that "A carrier who undertakes casual jobs for anyone who will hire "him is not a common carrier, nor is a furniture remover who makes a special contract with each customer, to pack and carry • goods." One who did not exercise tho public employment ot common carrior, but carried goods on nn occasion, or only under a special agreement, had been called a private carrier. It had been held that whother.a person was or was not a common carrier was a question of fact. On consideration of tho facts, and a number of authorities wluch lie cited. His Worship'did not think defendant could be held to be a common camel. Having contracted to carry plamtin s goods from one place lo another, he was bound to take all reasonable care of them while in his charge. Defendants liability to plaintiff was similar to that of a lorwarding agent, or bailee, for reward. A - though plaintiff overtook , defendant in Hawker Street and gave him perniv>sion to engage another carter, there was no evidence that plaintiffs goods were being removed under his.'own supervision, and'the only, question to be decided was whether defendant exercised reasonable care while the goods were in his custody. Defendant admitted that he left his express and' load standing unattended in Hawker Street for some minutes until he secured the help of- another expressman, and he stated that when removing part of his load to the express of tho second carrier the bag was not to be seen. From that fact it might be assumed tlmt the bag was either lost between Island. Bay and the stop in Hawker Street or while defendant was absent and his express unattended. It was questionable whether tho placing of a load upon defendant's express which necessitated stopping in Hawker Street was not an act which a careful expressman would have avoided, as also tho putting of a valuable bag on the top of such a load. If the ba» was shaken off the express oil tho way from Island Bay, that would indicate insecure fastening, and want of care on defendant's part. On the other hand, ir it was taken from defendants express when unattended, the loss wpuld arise from a want of supervision, which, in tho circumstances, was due from defendant. His Worship thought the evidence disclosed a want of reasonable care on the part of the defendant while plaintiff s gcods were in his custody, and tins resulted in the loss complained of by plaintiff. For that loss defendant must bo■ held liable. As plaintiff did not declare the value of the goods in the bag at tho time they, were placed upon the express, it was; impossible for defendant to check their value, but plaintiff admitted that the majority of'them had been used. In this case His Worship proppcpd to fix the damage at JiJO. Judgment was given for plaintiff for ,£3O, with costs XT 17s. At (he hearing Mr. H. T. von -Haoßt appeared for the plaintiff and Mr. H. i. O'Lcary for the defendant.

A DEAF LADY'S TEETH. The difficulties of a dentist in making a denture for a deaf person were illiistrated'in a ease heard before Sir. IMaeii, in which J. S. Fairchild, dentist, of Wellington, sued' Andrew salesman, ot Karori, on a claim for £3 ss. for professional services rendered to defendant s ,V jlr. H. F. von Haast appeared for plaintiff and Mr. 11. F. O'Leary represented'defendant. Plaintiff said he had made three attempts at fitting Mrs. Hogg's mouth witli artificial teeth, hut owing to the fact that she was deaf lie could not secure tne requisite co-operation on her part. Ho. was making her denture under a recognised system of manufacture, and it was '■necessary that the patient should be capable of "acting instantly on any instructions which might bo given during the piocess of taking the impression. Being satisfied that, lie could not mako a thorough success of the case owing to Mrs. Hogg's deafness, he asked for the return of the third denture which had "been made, intimating that if it were handed back he would make no charge. So far. however, the teeth had not been returnee to ßepTving to Mr. O'Leary, plaintiff denial tiiat he had arranged a code ot signals with Mrs. Hogg when she entered the dental chair for the purpose of having tho impression taken. He did not know when Mrs. Hogg first called on him that she was deaf. , Defendant s wife said she had arranged a system of signals with plaintiff, before undergoing the operation of having the in-pression taken. Plaintiff knew that sno was deaf. ~ Cross-examined by Mr. von Hnast, witness said she did not hear anything about the return of the teeth until her husband bad received an account for ,£G 2s. Andrew Hogg, defendant, in the action, stated that plaintiff told him that if the were returned lie would "cry quits.' Mr. von Haast: If you had returned the teeth there would have been no more trouble'—"T don't suppose there 'would have been, but the wife would have been twelve months without teeth." ' His Worship said it was perfectly clear that plaintiff hod recognised his failure lo satisfv Airs. Hogg, and was accordingly prepared to accept tho return of the tWHi. The whole position was unsatisfactory. He thought that plainlifl s proposal'was the only solution of the difficulty, and that had the teeth been returned there would have been no trouj ble. Ho ordered the teeth to be returned to plaintiff, and awarded tho latter costs amounting to ,£1 3s. Gil.

TENEMENT CASES. Mrs. C. M. Taylor, widow, of Wellington, who was represented by Mr. k M. Boechey, asked for possession of a house in Webb Street, at present in tlio occupation of D. A. M'lnerney, Civil Servant. Mr. H. P. O'Leary appeared ior M'tnernoT.

It appeared that tho rent had always been paid regularly, but plamtifi desiidd the premises for her own occupation. As she had accepted rent after the expiration of nolieo determining (he tenancy, Mr. Riddell held that a new tennncy had been creatcd, and that plumciu couid not succeed in tho action. A nonsuit was entered. J. H. Hooper and Maud T. Hooper were ordered to give up possession of a tenement -to Mrs. Elizaboth Hewison by \nril 9. Plaintiff also obtained judgment for .£ls, with .CI 6s. costs. UNDEFENDED CASES. Judgment by default was given for plaintiffs in the following undefended cases by Mr. Riddolh-Vacuuiii Oil Company Proprietary, Ltd., v. L. Buiin, Xl 7 9s. id., costs .£3 Gs. Bd.; .Tames A. Dnhertv v. Sergeant-Major R. H. Andrews, £f 19s. (id., costs XI 3s. Gd.; Magnus, Sanderson and Co., Ltd., v. May Nolan, JC3-1 Us. 3d., costs £2 lis.; James A. Dohertv v. 0. S. Daloman, lis. Gd.. costs 155.; J. E. Fitzgerald v. F. Meyer, ,l' 2, costs 125.; Joseph Brown Cooper v. 0. C. Warren, XlO 9s. 5d.. costs J!l J.'!-! Commercial Agency, Ltd., and \Vicgins, Ltd. (trading as J. L. Lord) v. W. Simonds, XI 165., costs 55.; Osmond and Son (N.Z.). Ltd., v. J. Guy, XI 8s„ costs 55.; Commercial Afieney. Ltd., and Buir, Harris and Co., Ltd.. v. 1. R. bishop, X 32 15s. 2d...costs X 2 Us.; Lazarus Wolfe Balkiml v. Georgo Cunningham, X4B 155., costs X 3 7s. 4d. JUDGMENT SUMMONS. On a judgment summons, W. M'Grath was ordered to pay T. P. Millison Xi 15s. by April 10, iu default four days imprisonment.. POLICE CASES. Tho police cases were heard by Mr. F. V. Frazer, S.M. Two first-offending inebriates were each ordered to forfeit the amount of their bail, 10s., and two others were each fined ss„ in default 2i hours' detontion. A sailor named William Waldeu was charged with beins absent without leave from his ship on Tuesday. As the officers of the ship did not appear in Court to prosecute in the case, the information against the defendant was dismissed.