AGENCY NOT PROVED

Evening Post, Volume CVIII, Issue 128, 26 November 1929, Page 15

AGENCY NOT PROVED

CYCLIST'S CLAIM FAILS

As was briefly reported in last night's "Post,' the Supreme Court case in -which Louis Shardlow, of Petone, claimed £552 damages from Maud Louisa Wilton, milk vendor, of Lower Hutt, resulted in judgI ment being given for the defendant. The claim was a sequel to an accident in which the plaintiff, while riding a bicycle along Gracefield road at night, collided with the defendant's motor-lorry which had been ief t. unlighted by her husband. Mr. P. W. Jackson, who appeared for the plaintiff, argued that the use of the lorry by Wilton to visit the land he was using for market-gardening made him a servant or agent of the defendant, who was, therefore, liable.

The Chief Justice (the Hon. M. Myers) said the fact that the defendant owned the lorry did not give the' plaintiff a cause of action. Agency had to be proved, and no such proof had been given. _ Counsel: "Shi gave her husband full license to use the lorry." His Honour: "Supposing she did, does that make her liable? He was not doing anything in connection with her business' at the time of the accident."

Counsel: "But she let him have the use of the lorry for any business he was engaged in,- and anything ho did was for the benefit of them both."

His Honour considered there was no evidence to show that the defendant benefited from the market gardening. The lorry was used by the husband for his own business. "I think if you have any cause of action here—l don't say you have or have not —it is against the husband."

Counsel both."

"I submit it is against them

"I'm afraid I can't agree with you," replied his Honour. "It is a pity you did not join the husband as. a party."

Counsel: "It is of no use. A judgment against him is not worth twopence."

His Honour: "It may be at some future time." He had a strong sympathy with the plaintiff, but he could not decide the case in defiance of what seemed, to be the principles on which such a matter should be decided. There was no proof of agency, and he was afraid Mr. Jackson's so-called benefit was far too remote for his purposes.

Judgment was entered for the defendant, with costs. Mr. P. S. K. Macassey, with him Mr. C Evans-Scott, acted for the defendant.