ACT OF SERVANT

Evening Post, Volume CXII, Issue 86, 8 October 1931, Page 15

ACT OF SERVANT

LICENSEE LIABLE NEW. ZEALANDER HOTEL CASE On1 a question' of the vicarious liability of an hotel licensee for the acts of his or her servants Mr. E. Page, S.M., in a written judgment delivered to-day, held against Cissy Mira Brough, the licensee of the New Zealander Hotel, and convicted her of selling liquor after hours. On the evening of 29th May two young men were supplied with a bottle of beer by James Fearon, the brother of the licensee, who was subsequently fined £10 and tho costs for having supplied Hue liquor after hours. On the same set of facts the licensee was also charged with having sold the liquor. "The sole question now for decision, said the Magistrate, "is whether. . . it has been shown that Fearon, in selling,. was an agent of the licensee so as to make the latter liable for his act. . . There is in the present case a body of police evidence showing that whatever may have been Fearon s nominal hours or nominal duties, he, in fact, took an active part in the running of the house after hours. It had Ions? been the practice to keep one of the staff posted after hours during the whole evening on duty at the front door of this hotel. I should have thought that for the normal conduct ,of a house of this size such a proceeding was unnecessary. The suggestion of the prosecution is that this action of posting a man at the front door throughout the, evening was not altogether an innocent one. The police evidence shows that Fearon was, throughout the period in question in these proceedings, frequently seen carrying out this duty. When not on duty at- the front door he was frequently seen on duty In the evening in the. lounge and sitting room. Almost every evening he would be seen on duty in one or other of these places. In the bar' itself that opens from the lounge a barmaid, or sometimes another member of the staff, was kept on duty. . . Upon the whole case I entertain no doubt that Fearon, during these evenings, was the licensee's deputy and that he had authority to sell liquor on her behalf lo persons (such as .boarders) lawfully entitled theret6, _an.d if, armed, with such authority,, he makes: an,unlawful, sale, the licensee is liable therefor." CONDUCT IMPROVED. On the question of penalty Sub-Inspector Lopdell said that the defendant had: been convicted for after-hour selling in 1929, and had then been fined £5. "The. conduct of the hotel during the. last six to nine months has improved very materially, and there does not now appear very much to-take objection to," he/said; "Prior to that there was an organised and fortified after-hour trading carried on on a very J large scale.". ' '" '■■ • After hearing Mr.. W. Perry, who appeared for the licensee, Mr. Page said that in this case he had fined the barman the maximum penalty of £10. "The act was his act, and not that of the licensee, he said; "and I propose, therefore to inflict a small penalty on the licensee. She will be fined £2 and costs."