DAMAGE IN TRANSIT

Evening Star, Issue 22442, 12 September 1936, Page 3

DAMAGE IN TRANSIT

ACTION BETWEEN SERVICE COMPANIES Whether a licensee under the Transport Licensing Act (1931) is still a common carrier was the novel question which Mr H. W. Bundle, S.M., was asked to decide during the course of a Magistrate’s Court action this morning between two now defunct service car companies, the damage of motor car fittings being the basis of the claim. Hunter’s D.O.T. Motors Ltd., Oamaru, proceeded against Wanaka Motors Ltd. on a claim to recover £2 15s, it being alleged that on October 16, 1935, the defendant company through its agent, E. Hope, contracted with the plaintiff to carry goods from Oamaru to the house of a man named Cuthbei’tson, at Waitaki. It was alleged that the defendant company failed to carry and deliver the goods in accordance with the contract, they being damaged in transit.

Mr W. J. Mead, instructed by M’ - A. G. Neill, appeared for the plaintiff company, and Mr G. T. Baylee for the, defendant company. Horatio Murdoch Macikay, managing director of the defendant company, said that Mr Hunter had told him that Hope, the driver of the bus, had stated that he admitted liability and would pay for the damage. Mr Baylee said that the evidence in support of the plaintiff’s statement hinged on the statements of the plaintiff Hunter and two clerks. While not going as far' as to say that the evidence was concocted, he would go as far as to say that these persons refreshed their memories as far as this alleged statement was concerned. The defence was based on three points—one on facts and two on arguments of law. He submitted that no claim could be made on the defendant company as a common carrier. He further submitted that a licensee under the 1931 Act was now purely a creature of the statute. Counsel held that plaintiff had made an election to deal with Hope, the driver of the bus, personally, and at that time was relying entirely on Hope for payment of the damaged' articles. The position would be that if the court held that a company such as Wanaka Motors Ltd. was a common carrier, such companies would have all the liabilities of a common carrier with none of the safeguards under statutory law. After legal argument had been submitted by both counsel, the Magistrate said that he was in* Dressed by the evidence of the plaintiff’s witness. The basis of the claim against the defendant company was that it was a common carrier and that the goods were not delivered in accordance with the contract. Counsel for the defence had argued at length whether the Transport Act affected the defendant company’s status as a common carrier. His Worship held that status was not affected. _ After outlining certain discrepancies in the evidence, His Worship said that failure to deliver the goods in an undamaged state was a distinct breach of contract by the defendant company. He gave judgment for plaintiff company for the amount claimed, with costs.