JUDGMENTS

Dominion, Volume 13, Issue 32, 1 November 1919, Page 9

JUDGMENTS

SPREADING "PIE"

AN INJUNCTION GRANTED Reserved judgment was delivered in the Suprsmo Court yesterday by His Honour tlio Chief Justice (Sir Robert Stout) in tho action brought by Maurice Edward Denniston. surgeon dentist, of Taita, against Alfred Walters and Philip Walters, of Taita, market gardeners.

Tlio plaintiff alleged that ho had suffered damage from offensive smells and vapours caused' by defendants spreading certain noxious matter, commonly known as "pie," the refuf? from the Gear Meat Works, on the land adjoining plaintilfV premises, and plaintiff claimed a.n injunction and ct"2oo damages.

The defence of Alfred Walters was a general denial that any injury or damage had been caused the plaintiff or that the dwelling was rendered inifil for habitation by reason of th? defendants spreading "pie" on their land, and, fn"thor, that if it were proved that plai"<i!i' had suffered damage from the spreading of "pio" as alleged, tliyn it hud not been spread bv Alfred AValters. but by the tenant, Philip Walters, who .was in cccupalion of the land by agreement in writing dated .March j. 1010. Philip Walters denied all the allegations of the plaintiff.

111 his judgment His Honour said *h ■' two questions had been raised—frst. whether the "pie" was noxious imd :>ffected tlie plaintiff as alleged, and, secondly, whether Alfred Walters was responsible for the spreading of the "pie." It was not denied that Philip Walters was liable if Hie "pie" was noxious and caused the alleged injury. His Honour, after reviewing the evidence, said ho was of opinion that it had been conclusively proved that this spreading operation on the defendant's property was a nuisance, was noxious, and was injurious to th° plaintiff and others in the district, and plaintiff was entitled to r,n injunction rostrainijig its use and also to damages lie might have sustained. With respect to damages His Honour'fixed the amount at ■ -As to the question of whether Alfred Walters was responsible. His Honour said that it appoared from the evidence tW Alfred Walters had not been engaged in spreading the "pie" this year, nor had he been in possession of any of tlie property this year, and he would, therefore, not enter judgment p.gainst him. Pliilin Walters was ordered to pay olaintiff's costs, which were fixed nil th" lowest scale, with .£ls Ifis. for Hie second day and expenses and disbursements, and he was also ordered to pay tlie costs of the other defendant (Alfred Walters). His Honour reserved leave for either nartv to appeal in the matter, especially in Tega.vd to the terms of the injunction, which will be issued as aslcyd.

At the hearing Mr. T. Neavo appeared for Hie ulniutiff. Mr. H. P. O'Lenry fov Alfred Walters, and Mr. A. B. Sievwright for Philip Walters. MOTION FOR NEW TIUAT,. His Honour the Chief Justice and His Honour Mr. Justice Chapman, sitting in Banco, delivered judgment'in the case of William Leonard Butler against Grencen Jo~nph Black, a motion for a new trial. Tho ease aroso out of an action for slander heard in Gisborne by Mr. Justice Chapman and a jury. Butler and Black were directors of the Gisborne Fnraers' Co-operative Comnanv Ltd.. and it was alleged tha.t Butlsr had snf. fered damage from the defendant falsely and maliciously speaking and publishing the following words,to one Frank Griffith, of Manutuko: "Bntler is not fit to be on the board of director#. He has robbed the company of about .Cl2O/" Butler claimed .ClOflO, and the jury awarded him ,£750. The application for a new trial was made on tho ground that, tho damages awarded the plaintiff we.ro excossivo.

There were really five grounds in support of the motion, but the Court held that the only possible one on which the defendant could rely was that the damages were excessive. "This is no doubt a ground on which a new trial could bo ordered," remarked Their Honours, "but lilio -rule has been laid down in a. Ions; series of cases that before a new trial croi be granted in such a case as this, it must bo shown that the jury has either misunderstood tho case or that tho verdict is of such a character that, under the circumstances, no twelve reasonable m?n could have arrived at it. In order to arrive a(i that conclusion wo should havo to find.ground for tihinking that the jury had been influenced by something beyond the evidence." After dealing with the legal points involved in tho case, the judgment concluded: "The damages appear to us to be excessive, but, considering- the circumstances wg have mentioned, we can nor sav that the jury may not have reasonably come to tho conclusion that the uluintiff was entitled to thd sum nwarded. It was entirely a matter for the jurv, and this is not a case in which it. can be said that there was no circuiu. stance tending to, what is termed, in. flame the verdict." The motion was re. fused with cost 9.

Mr. H. F. O'Leary supported the motion, and Mr. Burnard, of Gisborne, op. posod. A DISPUTED WILL. The Registrar of the Supreme Court read the judgment of His Honour Mr. Justice Sim in the case of Peter M'Donald against Elizabeth Valentine and others-. This was an action to obtain probate in solemn form of a will alleged to havo been made by Archibald M'Donald, who died about March 3, 1910. The will, which was dated July 10, 1916, appointed the plaintiff os _ executor. _ Tho defendanis. who were interested in a will made in 1912. denied that Archibald M'Donald ■was of sound mind, memory or understanding when tho will was executed, and claimed that ho <iid not know or apnrove of the contents. They nlleged, also, that tho execution of tho will was obtained, bv tho unduo influence of Peter M'Donald.

The hearing of the case took five days, nnrl numerous witnesses were called on both sides. His Honour, after reviewins the evidenco at groat length, said that he was of opinion that the plaintiff hud failed to prove that the -will he now propounded was that of a free and capable testator, or expressed the real intention of tlio testator. His Honour, therefore, pronounced against the will, and gave judgment for the defendants with costs agamst the plaintiff according to scale, as on a claim for .£BOO with disbursements and expenses. The defendants were also allowed .£ls 15s. per day for two extra days of the trial.

At the hearing Sir John Findlay, K.C., with him Mr. P. E. Broad, appeared tor the plaintiff, and Mr. T. M. Wilford and Mr. P. Levi for the defendants .MOTOR COLLISION CASE. His Honour Mr. Juslice Hosking delivered reserved judgment, in Ihe case of thu Wellington Publishing Co., Ltd. (apoellnnts). and Charles Frederick Valianco (respondent).

This was an appeal from a judgment of the Magistrate's Court on a claim and counter-claim whereby rach parly .sought to recovcr against the oilier in conseciuencc of a collision between u motor-van ljelonfjiiifr lo appellants, and driven by 0110 Hutchinson, and a motorcur belonging lo and driven hy the respondent.. The scene of the collision , was on a troublesome part of the road between Wellington and Teatherslon. where n bend occurs, which had the. clt'eet of hiding from cacli other, until wilhiu a comparatively short distance, vehicles approaching in opposite directions. In a lengthy review of the facts presented in the lower Court, and of the evidence given in the Supremo Court, His Honour said ho considered that the Magistral? had ample evidence lo support hi* linding«, nnil therefore appcllanl had failed In establish that Hie Magistrate was wrong in so doing. T'lie appeal was accordingly dismissed with .£2O rests and disbursements. At the hearing j\li. T. \ r oave appeared for the appellants and Mr. A. AY. Mail - for the respondent. SUMMONS TO SET ASIDE A M'JUT. ITis Honour Mr. Justice Hosking also delivered judgment in I he ease of George von Zedlilz v. the "New Zealand Times" Co., Ltd. His Honour said: "This is a summons asking that the writ and statement of claim be struck out—that is, set aside. Tho ground of tlio application ia that the statement of olaim doea not Bpaoify tho amount claimed. I'h.e action

is for libel, and tho plaintiff alleges that ho has suffered great damage from the libel and claims to recover damages without mentioning any figures. I think that the statement of claim is irregular in not specifying the amount. It appeal's to me that tho following rule applies: 'If the statement of claim seeks tlio recovery of a sum of money the amount shall bo stated as precisely as the nature of the case admits.' The phrase-sum of money—is appropriate whether the sum sought, to be recovered is a debt or damages." His Honour quoted analogous cases and observed:— "I think the proper order to make is that the statement of claim filed be set aside and that the plaintiff have leave to file within seven days an amended statement of claim specifying the amount of damages sought to be recovered. As no notico to file a more explicit statement was given 110 costs of the application should bo allowed." An order was mado accordingly. Sir John l'mdlay. K. 0., appeared for the "\ew Zealand Times" Company, and Mr. ('■ P. Skerrett, K.C., with him Mr. T. Hislop, j iinr., for the plaintiff.