DAMAGE TO GOODS

Otago Daily Times, Issue 22985, 14 September 1936, Page 5

DAMAGE TO GOODS

ACTION BETWEEN SERVICE COMPANIES Legal argument on the question whether a licensee under the Transport Licensing Act, 1931, is still a common carrier formed the basis of a case heard in the Magistrate's Court on Saturday morning before Mr H. W. Bundle. S.M!, in which Hunter's D.O.T. Motors, Ltd,, claimed- from Wanaka Motors, Ltd., the sum of £2 15s, the value of goods damaged, it was alleged, while being carried by the defendant company. Mr W. J. Meade, instructed by Mr A. G. Neill, appeared for the plaintiff, and Mr G. T. \Baylee for the defendant company. Evidence in the case had previously been heard in Oamaru. The statement of claim set out that on October 16, 1935, the defendant company, a duly incorporated company, carrying on the business of a common carrier, contracted with the plaintiff, through its authorised agent, E, Hope, to carry certain goods from Oamaru to the premises of one Cuthbertson, at Waitaki. It was alleged that the defendant company failed to carry and deliver the goods in accordance with the contract, the goods being damaged in transit. Evidence was given by Horatio Murdoch Mackay, managing director of the defendant company, who said that in a telephone conversation with Hunter the latter had accepted liability and had promised that the damage would be paid for. Mr Baylee said that the evidence in support of the plaintiff’s statement revolved round the statements of Hunter and two girl clerks. He would not say that the evidence was concocted, but he would go so far as to say that these persons refreshed their memories at an informal party held the night before the case was heard in Oamaru. The defence was based on three on facts and two on arguments in law. The points of law were: (1) No claim could lie against the dfefendant as a common carrier, a licensee under the Transport Licensing. Act, 1931, being now purely the creature of statute; and (2) the plaintiff made an election to deal personally with Hope, and at that time was looking entirely to Hope for payment of the damage. Mr Baylee submitted that if the court held that a company such as Wanaka Motors, Ltd., was a common carrier, such companies would in future have all the liabilities of a common carrier, without any of the safeguards under statutory law. After both counsel had submitted legal argument, the magistrate stated that he had been impressed by the evidence for the plaintiff. Counsel for the defence had argued at, length whether the Transport Act affected the status of the defendant company as a common- carrier, but the magistrate held that the status was not affected. Failure to deliver the goods in an undamaged state was a distinct breach of contract by the defendant company. Judgment was given for the plaintiff for the amount claimed, the amount of costs to be decided.