A PECULIAR CASE

Pukekohe & Waiuku Times, Volume 9, Issue 512, 9 March 1920, Page 3

A PECULIAR CASE

■•ARTHUR V. JOHNS.

A moat peculiar cast, and the first ofgts far aa Pukekohe ia ( WWrned, was h«ard at the Magistrates Court ,on Thursday, before F- lUiHunt, S.M., when J. r. McArthur, Yranklln County engineer, proceeded to recover from J. W. Johns,' retired farmer, of Pukekohe, £l6O damages at set out as under:— The statement ofL claim showed that plaintiff was a imrried man employed as civil engineer by the Franklin County Council, and was the occupier of a nine-roomed house and appurtenances, as the monthly tenfj of Mrs. C. McKernon, of Ota®ur.u l5 ho now. sold to defendant) .. The plaintiff said that between six o clock in the evening of Satur- ' day, February, 14, 1920, and nine o clock in the morning of Monday, February 16, 1920, during the temporary absence of the plaintiff and his family, the defendant unlawfully broke into, and forcibly entered, selsM and took, possession of the sua house and appurtenances of the plaintiff, and further, the defendant / unlawfully seised and took possession of the household furniture, goods, chattela and personal effects of tho plaintiff and family. On Februw* 16 the plaintiff says the defendant unlawfully refused to permit the plaintiff to enter the house •iter request made, and unlawfully prevented the admission of the plaintiff to the house. Further, on Febthe defendant, together with his agents or servants, between February 14 and February 16, broke Into and forcibly entered the house occupied by the plaintiff, and therein damaged and tore up certain of the floor coverings, dismaantled, removed and bundled the household furniture, chattels, clothing and pereffects, all the property of the plaintiff, into two of the rooms of the house, and thereby damaged the floor coverings, furniture, chattels personal effects to the value of £3O. The defendant declined, 'after several nuuM|Lto leave the house and appurUnjSfces until about midof February 16, and thereby deprived the plaintiff of the use and enjoyment of the house, furniture, chattels and personal effects. Hie plaintiff had suffered much monetary loss, inconvenience and loss of time by the unlawful actions of the defendant. The plaintiff claimed */20 as general damages. The plaintiff claimed the sum of £3O for special damages set out aa follows: Damage to valuable piano case, scratched and marked, £6; sideboard, £2; floor coverings, lino «nd felt, £6: floor coverings, not ripped, up, £2; carpets, 10s; door slips, 10s; machine, *1; curtains, £1; clothes, £2; furniture generally through being hurriedly shifted, £lO. Total, £3O. The plaintMfcvclaimed in ail the sum of £l6O I'Jtr. Percy H. B as ley appeared for plaintiff and Mr. J. G. Haddow for " defendant. hr Mr. Haddow raised a preliminary objection in reference to the owner of the property. In the plaint notice Mrs McKernon was cited as the owner, but on February 13 the title was transferred to Johns. . Mr. Basley applied to have the claim* amended, and the Magistrate acquiesced.. Mr. Haddow raised the question of jurisdiction: (1) The question of title is deliberately challenged; (2) the amendment to allow the name of the owner is not allowable on the grounds that it substitutes one cause of action for another. Mr. Basley contended Johns was ■[ trespasser, whether he was a landmid or a stranger off the street. The defendant made it public property that he intended to enter the house. He waited until McArthur and family had gone to the country, and at the time the doorß were left locked. There were only two doors. Further than that, there was a 'phone in the house, the property of the County Council, which he used and rang up the exchange, and told them McArthur had gone. He also told the milkman not to call. He also tore up ; linoleum and ran a piano over the lino. Everything of a nine-roomed house was dumped into two rooms anyhow. Clothes were strewn in all directions. . In answer to Mr. the Magistrate said he wag*/Wft hearing the question of title, but a question of damages to furniture. He would note Mr. Haddow's objection, but altered the statement of claim to read "who has now sold to defendant," as contained in parenthesis above. James Frederick McArthur, county engineer, said he occupied the house . Jn question over two years as tenant Mrs. McKernon, and was in occupation on February 14. On this date he left with his family about 6 p.m. to go to his farm about 25 mile? jfray for the week end.. When he I $ -lift the Mttle girl locked the door, witness going to see if it had been locked. The key was inside. In relation tp the back door was a small scullery window, and by opening the window the door could be unlocked. He did not know whether the windows were locked, but was sure all were shut. He closed the front door himself, the door automatically locking through a Yale lock. He went tr Mangatangi and returned on Monday about 9 a.m. Witness tried to un lock the door, but could not. John* came to the door, opened it, ano 1 when he saw whom it was, he said "You can't come in here." Witness went round the side of the house and Johns rushed round and closed r window. Johns opened the window and witness said, "I'll get the policr t.n put you out," but Johns said "Don't do that; go and see your law yer ." He did so, and returned with I the police. Constable Milled rang thf bell, and Johns came to the door asking, "Who's there," and when tolt' it was the police, he opened the door When asked how he became there Johns said his solicitor had told Mrr at the train to take possession o f the house. He said he had been ad vised by his solicitor to do so. John? and Constable Miller went in, and Johns shut the door in his face. Constable Miller advised Johns to let witness into his own house. Witness went in, and saw the furniture dumped into a couple of rooms. After that he and Constable Miller went to see Mr. Basley. They went down to Sergeant Cowan, who informed Constable Miller to go and see that no breach of the peace was occisioned. He then went back witl Nonstable Miller, Mr. Basley and M» lioukins, solicitor for Johns. Wher tkfts»»rrived at the house again, Mi Johns ;isW M r Hopkins' opinion on th'' Hopkins denied ad vising him to . After a dis cussion in the kitcl.on, Mr. Hopkins advised Mr. Johns tCgo out. When John's was told he had done somethink' uriUtfM Johns saidfhe was nrenVed to abide bj.-khe consequenL Mr. Johns then went along tr where his bed and bed clothes were. Tr>hns nncktOi them up and bundled Sim on tofthe verandah. Mr. Bas- « Jjv wggest'd *"ch party should have an lessor, and with that Mr. Johns ran* up someone, and a young fellow named Leu Lawrie, came up and wMt through the house with Mr. i«i,n« He left his wife, daughter iSd son at the hotel. During 11 and 12 noon Mr. Johns quitted the house. When he got Into the house, he nothe rooms" had been cleared The piano, sideboard, settee, and picture had been taken S Slninf-Mom. All .ic.pt

thrown into ohe room. The piano was next the window, a settee, end up, was up against the piano, and a number of chairs on top of the machine. The top of the sideboard t was taken off and laid down. On toj- . of the sideboard was 9 quartz weigh-1 ing between 40 and 501bs. I letters and papers were in the drawer, and he had not yet found everything. The main bedroom was left ' intact, and the contents of the two other bedrooms dismantled and de- ' posited therein. The lino and felt I were ripped up. Kitchen utensils were packed up in a lumber room. Pots and pans from scullery were ' also put there. The carpet from the 1 breakfast-room was also taken up, and the contents thrown into the other rooms. The same applied to the sitting-room. The clothing in the children's bedrooms was put into the bedroom very untidily. The table from the breakfast-room was put in the kitchen. Mr. Johns had occupied the boy's bedroom. Johns had used the bucket and broom for sweeping up the rooms after- taking up the linoleum. He assessed the damage at £3O. Witness had been greatly annoyed by the act, and the question had been freely discussed about the town. At the time Johns had decided to put the furniture back in its place, but witness objected. The house is practically in the same condition as he found it when he returned from Mangatangi. Witness was a busy man on account of his duties. Mr. W. F*. McClintock inspected the furniture and as-, sessed the damage. He never gave Johns any authority to break in or go into his house. He never asked for any authority. The state of affairs on the Monday morning was a surprise to him. Johns never told witness who went into the house . with him. , To Mr. Haddow: The piano was only a second-hand one, and cost between £BO and 90. It may hve been a little more. It had been bumped , about somewhat. The damage included a small dent, and several 'scratches were also visible. He estimated the damage at £5. The damage to the sideboard he estimated at £2. The polished top was severely scratched through a lump of quartz „ having been deposited thereon. The piece of quartz was not on the side- , board when he left the house. This j] he was certain of. The lino and oil- 7 cloth was taken up without the tacks si having been removed. He claimed & the £l2O for general damages for in- r| suit.

To His Worship: There were nine rooms in the house, and the insurance on the furniture was £2OO. Evidence was given by Frank Perkins, agent for the insurance company in which plaintiff's furniture was insured, who said he had inspected the furniture. There certainly was a few pounds damage. From what he saw in the two rooms, it appeared as if there was no special care or special attention taken in removing the furniture. W. F. McClintock, cabinetmaker, Pukekohe, said he inspected the furniture. He found a piano scratched and marked, and the scratching appeared recently done. The piano was dented also. It could be repolished for about £5, but even that would not remove the dents. He inspected a sideboard, and found the top scratched and bruised. The marks could only be eliminated by planing them out. There was a large piece of quartz on the sideboard. Re the lino, the prices varied, but he did not think the value of plaintiff's had depreciated greatly. He estimated the general damages at about £lO, and the whole damage between £ls and £l7. To Mr. Haddow: In making the estimate he assumed the articles were all in eood condition. He did not think the permanent home of the quartz was on top of the sideboard. It took an expert to remove a piano. It was not a bad sideboard at all.

The Defence. The defendant said on Saturday morning he met Mr. Hopkins, and as a result went to the house and found a window open. He got into the house and took possession. He had information that as a landlord he could take possession. He got in and stayed in. When he got in he moved the furniture, assisted by Mr. Bayly and Mr. Nodwell. He did this on Sunday and Monday. They shifted the furniture in a very careful manner. The piano was a light one, and could be carried anywhere. The piano was not scratched, nor was any damage done to any of the furniture. The arm of a big couch was up against the piano. He made a splendid job of the whole of the shifting of-the furniture. He admitted doing the felt a little damage, but the lino and oilcloth were not damaged at all. Witness swept the carpet before it was lifted. He never shifted the machine as far as he could recollect. It took Mr. Bayly and he about eight or nine hours to do the work. He knew nothing about law, and he would not have gone without some advice. He entered the house during Saturday evening just before dark, and slept there that night with a Mr. Nodwell. He carried a bed for about half a mile, and arrived about 8 or 8.30 o clock on Sunday night with it. On Sunday morning he had breakfast at Bayly's and Bayly went across and assisted him to shift the furniture. He discussed the matter of entering the house with Mrs. Johns, Messrs. Curd, Fear and Bayly. He did not discuss the matter with anyone on Sunday, but may have done so on Monday. He had a good look at the niano, but did not look at anything Mse. On Monday morning he boiled water in plaintiff's kettle as well as using a cud and saucer and one olate. He also used McArthur's bucket and broom, and switched on electric lights, but did not use them foi nny length of time. He told the telephone exchange that he had possession of the house, and would be us>ng the 'phone. He used it for a long-distance call, but had since paid the bill. He also told the milkman he did not want any milk on Sunday morning. The window where he ntered the house was wide open. To His Worship: He was not advised to take steps like others die' to have the Court make an order t< •vict the tenant. Hopkins told him on the Saturday morning that hf ?ould go in and take possession. Before that Hopkins told him he couic not take possession because it was■x very dangerous thing to do. Before he saw Hopkins on the secow 1 occasion he had made up his mini' not to go in and take possession. Mr. Haddow pointed out that or the previous Friday afternoon Mr. Hopkins and Mr. Baslev, the tw< solicitors, had a conversation and ha< agreed to let Mr. Johns have tw< rooms. Mr. Hopkins conveyed th< message, but Mr. Johns had misun derstood Mr. Hopkins. Mr. Johns admitted l that he di* misunderstand Mr. Hopkins. Mi Haddow contended the notice wa: good, and that Mr. Johns was en titled to a peaceful- entrance, an< went further than this and sai< that being so, Mr. Johns could hav put the furniture out of the win dow, and no matter how great th damage, McArthur could not hav claimed damage. The whole case de pended on the interpretation of th notice. As agreed in the first cas the case was adjourned to Aucklan until March 15, when legal argumen as to the legality of the notice wi be heard.