MILK DELIVERY

New Zealand Times, Volume XLVI, Issue 10617, 16 June 1920, Page 6

MILK DELIVERY

THE BLOCK SYSTEM IMPORTANT PRINCIPLE INVOLVED IN UNUSUAL PROSECUTION. SOME INTERESTING INTERLUDES. A case to which considerable importance to consumers of milk, milk vendors, tho Wellington City Council, and the whole of the community, is attached, occupied tho attention of Mr B. Page, S.M., all day yesterday in the_ Magistrate’s Court. The information was as follows: ‘‘That the No. 1 Municipal Milk Distributing Company, Ltd., unlawfully and wilfully committed a breach of contract in respect ot delivering milk in regard to tho contract between tho company and the corjioration on J une ,26th, 1919, in that the company failed to supply James Darling, residing at Botanical Gardens road within the district of the block allotted to the company.” Tho city solicitor, Mr J. O’Shea, appeared for tho prosecution, and Mr T, Neave for tho defence. CASE FOR THE PROSECUTION.

Mr O’Shea, in outlining the case for the prosecution, detailed tho scheme .adopted last year to ensure the delivery of milk in the city in a thoroughly sound and fresh condition. It had been tho council’s intention to bring about an amalgamation of old vendors into one company, but, owing to their sects, schisms, and differences, that arrangement was found impossible, and In the end an arrangement was made whereby the city was divided into blocks, which were allotted to companies who have the sole rights in their respective Mocks. Mr O’Shea produced copies of licenses, maps, agreements, explaining to Mr Pago the location of the complainant’s house, which was the last of the houses in the road at the particular section of the No. 1 *t>lock. CAN NEAR THE ROAD.

Eight up to May 17th the No. 1 Company (Mr Bodley) had. delivered milk to the complainant's house, hut then save notice that the can would have to be placed at the Eawhiti terrace end of the road, otherwise no milk would be left, the reason given being that the track leading to the house, under the tramway, was not safe. The City Council had attended ‘to the track and had made it a track across which a perambulator could be wheeled; but Bodley still refused to deliver milk to the complainant’s bouse. Bodley’s predecessor had served the house from an upper track, as the flower one had been made only of late years. It was suggested that Bodley’s action was an attempt to reduce expenditure, but it was specifically set out that all consumers in a_ milk block must bo supplied with their daily requirements. It was set out in the agreement that distributors were required to suppy all consumers _ in the distributors’ particular blocks with their ordinary requirements of milk and cream daily, within certain limitations. The complainant required two quarts of milk daily, but on May 17th his supply from the No. 1 Company (Henry Bodley and Son) was discontinued. A sudden change in Bodley’s attitude had been remarked lately. The company had been serving customers quite satisfactorily until recently, when expenses became much greater than they were formerly, and the company apparently endeavoured to reduce the cost of delivery. MEETING THEM HALF-WAY. Mr O’Shea said that in many cases, where long flights of steps led up to houses the milk distributors would meet the customers half-way, and the "billy” would bo placed in a position convenient for both.. The City Council did not wish, for a minute, to force vendors to deliver to a place which was not accessible. Should a person unnecessarily demand that the milk be delivered at a spot inaccessible to the vendor, he would not be in a position to'succeed in a legal action, as the magistrate would have the power to dismiss the information under the Justices of the Peace Act.

The City Council, continued Mr O’Shea, had taken every reasonable stops to assist Bodley to carry out his contract, but despite that fact he "gibbed.” That was most unfortunate, as no man had done more to advance the block system than Bodley. He appeared to have a peculiar notion that he was being victimised if ho had to deliver milk "more than a foot off the footpath.” He had to be brought to reason in some way. POSSIBLE DRASTIC ACTION. If the City Council could not enforce the carrying out of the contract by proceedings such as were being taken, said counsel, the only course left open to it would be to determine the contract, and to have the matter referred to the Supreme Court. Mr Neavo: “It cannot be cancelled without the approval of the magistrate.” “We are taking these steps, instead of taking action to have the license cancelled,” replied Mr O’Shea. The case under review was not tie only case complained of, said'Mr O'Shea, for there were half-a-dozen similar cases in the neighbourhood. Bodley interjected with the remark that certain of these complainants were on the final payment lists, as they 1 ud failed to pay their accounts, as required. Ho mentioned a specific case, which was .ha rasterised by Mr (E-Shea as an absurd and impertinent suggestion, ns t.b« consumer in question was a reputable business man.

"They are the people who do not pay, and want six-monthly accounts,” answered Bodley. The position was, said counsel m (oielusion, that Bodley wanted Darling to leave his can 150 to 200 yards from his house on a public street in such a position that he might lose his milk and'even his can. The persons living at the hack of Darling’s place would take two quarts of milk daily, and would tM'e it over the back fence, so tha,t when there was a full simply Bodley could supply one gallon daily to those two. houses. EVIDENCE OF COMPLAINANT. .Til mefl Darling, manager of the Kelburn Tramuay Company, said there were two ways of approaching his house, a path from the tram sheds, and another under the Botanical Gardens road. On 16/5/20 ho found the following note from the milkman. "Owing to the track under the tram line being impassable in the dark, roil will have to place your ’billy’ at the Rawhiti end over night.” Witness took no notice of the note. He received no milk on the Tuesday, and went down to see Mr Bodley, who gave him to understand that? ho would not he supplied, as hh house was too far from tho road. Witness suggested that the milk should he brought down from the top of the hill near the Tea Kiosk, but Bodies- refused. On May 17th witness saw the ciL- engineer, and ns a result, n track, 3ft wide and properly prov'dlcd. was cut, out two davs after’ivenVi. The other tradespeople used Hi-, 1-nek. wbieb was perfectly safe. Af.. Neeyp; The position is tint you require the milk in he delivered at your ,]oor?—No, at the -bonmlnirv. Mr Ne-ive: Supposing all the other residents and consumers want tlmr; milk delivered te them off the road.,onri vet have to leavo their Ivllies at them gates, do vnu want to bo treated preferentially?

Witness: No, I don't, only the road is n. public rond. Mr Nonvo; Mr Hodl*v hn*» offers! to vour milk at the powor-housc?— Yr~. Mr Neave: Wen, do yon still want to

go on with the prosecution, Mr O’Shea? Mr O’Shea; Yfs. I do so. I have several other prosecutions. It is not only that "Mr Darling may get milk that lam prosecuting. It is for the good of all consumers of milk. OTHER EVIDENCE.

Henry Ward, officer-in-chargo of the Municipal Milk Supply, said he receaveu a complaint from Mr Darling on May 17th at not receiving milk, also the ultimatum from the milkman ordering that the “billy” be placed at the gate. Witness communicated wath. Mr who adhered to'hie decision and rot used to discuss the matter any further. Three days later witness wrote, to Mr Bodley, advising him that he was bound to serve Mr Darling and three others, under the regulations. An inspection of Mr Darling’s house showed that the upper track was in good order, but the lower track was not too good. „ ~ , Mr Neove: Is iit not a fact that on the inauguration of the milk distributing scheme the companies} made" a requirement to tho effeot that all billies be left at tho gate?—That I can’t say. Mr Neave: Was it ever stipulated by the council that milk should be deIvered to the door of a house?—No. Mr Neave: You will recognise that it is a vital point, Mr Ward?—Yes. Mr Neave: Tho milk is brought m a horse drawn vehicle, and is it possible for the cant to'come closer than Upland road, near the tramway house? —I don’t know the locality very well. Mr Neave: Do you think it a safe end proper thing for a man to leave hia horse and cart on tho roads and hillsides of Wellington in the dark and walk down a narrow track, a distance of 150 or 200 yeards to servo a quart of milk?— Yes. Mr Neave: Do you think it reasonable for Mr Bodley to leave Mr Darling’s milk at the Kelburn power house?—Yes; quite! _ Mr O’Shea: Has Mr Bodley offered previously to leave the milk there?-No, this is the first time he has said that. Paul C. Peters, delivery superintendent for tho City Council, said that Mr Darling’s house was easily approached 'rom Rawhiti terrace and Upland road, and that it was usually approached from Rawhiti terrace. On his first visit to Mr Darling’s tho condition of the track, leadintr to the house from the street, was bad. Mr Bodley was quite Justified in refusing to servo hy that track, and he had to use the path from Upland road, which was in good order. The milkmen used to go to the hack of Mr Darling’s house, and the people next door put the billy over the fence, and Mr Bodley served tho two houses, both of them ’akimr two quarts—one gallon—in ono delivery. Mr Bodlev now had to servo tho houses from Salamanca road. CASE FOR THE DEFENCE.

For the defence Hr Neave submitted that the regulations laid under the authority of the War Kegulatlons Act did not affect the question concerned. The section was a penal section. It was a question ol pure law regarding section 9 of tho Wellington Milk Supply Act. Properly interpreted section meant that a person, would be guilty of an offence who wilfully committed a breach of contract, in regard to the supply to the Citv Corporation, and the person charged must be proved guilty of a breach of contract to the City Council, or a purchaser from the City Council. Ho contended that the section did not apply to the supply of milk by a company to a third person. The City Corporation must show that the No. 1 Company had wilfully committed! a breach of tho contract entered into in June, 1919, in order to succeed. It must also establish, that the obligation Imposed upon the No. 1 Company was clearly expressed so that "he who ran might read.” Mr Neave also held that it was not sufficient for the prosecution to ask the magistrate to infer into the agreement an, obligation which was not set out In special terms. Tho question of the place of delivery was never contemplated by the parties to tho agreement: that the agreement was silent on that matter. It was clearly set out that where the milk was to be bought by the companies, nut the places in which the milk should be sold to consumers was not mentioned. That question was left to the bargaining between the vendor and the consumers. It was intended in tho agreement to leave tho delivery of milk after six hours as could bent be carried out. Mr Neave pointed out that tho companies committed an offence if the milk was not do liyereu within six hours. The inteieuce was that delivery was to be made as might be arranged between the vendors and their customers. It was set out in clause ! of tho regulations, that delivery must be made between the hours ol 3 a.m. and noon, and the failure of the company to so deliver the milk would render them liable to bo prosecuted, Mr U'Shca: “If it was wilful.” If it was intended to intortoro with the ‘companies’ right to close the point ot delivery, that matter would have been referred to in the l agreement. The case of Mr Darling’s was not the worst, as in many places, Mr Neave said the vendor could onljr roach the houses by considerable physical exertion. If tho request of the vendors that tho milk be delivered in a convenient place was not complied with by consumers, then the companies would have to go out of business. Mr Neave -submitted that tho case should bo dismissed. LOSS OF .£6O PEE WEEK.

Henry Bodley, manager of the No. 1 Company, said ho had been in tho milk business for the last 35 yeans. He liad appropriated to his company tho No. 1 Block. Witness had made an impartial requirement to all customers to put their “billy” at the gate. He delivered the milk by horse vehicle, and in the iutentsts of all customers milk was delivered before breakfast. That meant that tho frnctiousncss of one customer meant delay to perhaps a hundred customers. If milk, was delivered to tho customers’ door, it would mean doubt« time and double expense. His company should, on the margin of 7d, make 2d a gallon, Put his company -or any other had not shown a profit for tho present year. Witness was losing .£6O a week, his company’s expenses for one week being .£l9O 16s -1(1, while the income was only .£l2O 18s Id. Wstness served 3700 customers, and only half a dozen out of that number tailed to comply when requested by witness to place their billies near tho front gate. Mr Pago: How many carts have yon? —Eleven carts and two motors. By leaving his cart outside a gate while ho was inside, tho driver of a milk cart ran a certain element of danger. It was simply to enable all the customers to get milk by breakfast that the request for “billies” to. bo left at the gate was made. • . ~ , Mr O’Shea : What did you get that Xioo 16s 4d from? Oh, that's correct, the secretary made 1 Yes,' and you did not feel disposed to bring along the detailed statement? Well, you can get it from the seoro7ho witness then got very excited, and would not let Mr O’Shea proceed with his qnf'stioDs. 1 Mr Pago: Mr Nenve, try and keep your client quiet? , , Mr Nenve: Im doing my best, sir. Mr O’Shea: Now, have you not rechived more tluin ono or two coiiiplcniit? from customers? Witness (excitedly): Ah, Ivo got one bad customer, Airs . and she’s

lf.vr.lv Mr'O'Sben: You were told by M> Ward to iron! vour customers satisftirtori \y r crawler, and I’m not going to crawl xo» unyJxiiiv. TiOoV. hero, (lie City Council have an overdraft of and at <ld a gallon line been taking it out of tlio public on the pretext of making a flat rate, for the whole year. I tell you as the winter iconics on the council springs an extra td on the price and grabs that themselves. Mr O’Shea: That is enough from yon. It is libellous . . Witness: I don't care what it is.

Mr O’Shea; You arts going to decide exactly where the customers are to hang luoir oijiies, it is your whim? Witness. Whatever demand is made on one will be made on the other, I Mr O’Shea: Now, look here, I don’t want, an address; I want an answer to my question. Witness: Wei), I’m not going to let the working man pay for the snobs in Kelburn. You will get it in other ways; you’ll hear about it from the Labour party Mr O’Shea; Very well Mr O’Shea: Is it not a fact that it takes loss time now to deliver than before? - Witness: No. Look here, you’re after my wages; well, 1 get ton quid a week, so there you are. Mr Noave: Mr O’Shea has hinted that you employ 100 many on the staff. — Well let him corn© to me. Mr Neavc: What are your hours?— From 5 a.m. until 10 p.m. Do we work, what? I should say so; you bet your life. Mr Page: Assuming that the road to Darling's house is in good order, do you propose to servo him at the door? —No. MANAGER'S EVIDENCE’. Charles Duthio. manager of the No. 3 Block, having experience, said his company would not deliver to a liou.se a distance from the fence. It was an absolute necessity, and if this was not complied with, the business of milk distribution could not be carried on profitably. Although the revenue was less consequent on the .great shortage of milk during the last four or five weeks, the cost of distribution was the same. Witness was cross-examined at length by Mr O’Shea. Richard Henry Williams, manager of No. 4 Company, and John Moore, also gave evidence. JUDGMENT RESERVED. Mr Pago: 1 will take time to consider this matter. 1 will give my written judgment.