WAIRARAPA DISTRICT COURT.

Wairarapa Age, Volume XXXI, Issue 9179, 31 August 1908, Page 5

WAIRARAPA DISTRICT COURT.

SECOND DAY'S PROCEEDINGS

KENNEDY v. MILLER

The Wairarapa District Court continued its session on Saturday before His Honor Judge .Haselden. The business fo'r the day wa3 the civil action James Joseph Kennedy v. Nathaniel Miller, a claim for £2OO- - statement of claim set forth that on the 23rd May the AngloWelsh football match took place on the Masterton Showgrounds, and on that occasion plaintiff paid for admission to the grounds and to the grandstand. He took a seat on the grandstand on which there was no notice of reservation, and of which the plaintiff held he was the licensee by reason of payment and possession during the progress of the match. Defendant without any right, title, or lawful authority, assaulted the plaintiff, dragged him out of his seat with great personal violence, in the presence of somß thousands ofjpeople, causing him personal injury and defamation of his character. Defendant gave the requisite notice under the Police Force Act, 1886, and no amends having been made or offered defendant calimed the sum of £2OO by way of damages, or in the alternative }he plaintiff claimed the same damages on the foregoing grounds: upon the ground that if the defendant be found to have had any right to remove the plaintiff from the grandstand as aforesaid in law he used unnecessary violence and exposure to the plaintiff in doing so. Mr C. A. Pownall appeared for plaintiff, and Mr A. L. Herdman, with Mr P. L. Hollings, for defendant. The foMowing jury was impanelled —W. H. Den by (foreman), W. J. Beard, C. Y. Dally and A. C. Williams. Mr Pownall, in opening, said the facts in brief were that the Showgrounds were practically leased for the day to the Rucrby Union by the A. and 4 P. Association, a charge oeing made for admission to the grounds, and also to the grandstand. These charges were both paid by plaintiff, who took his seat in the front row of the stand. It turred out afterwards that these seats were reserved, but in no way was such reservation indi cated by advertisement or anything else. Plaintiff was not the only one who took up a seat on the reserved section, and all were invited to shift. Plait tiff happened to be nearest to the steps and was the iirst one requested to nKve. He naturally refused to move, declining in a quiet and inoffensive way, explaining that the seats were not shown to be reserved. Defend-.nt, who was called upon to remove plaintiff, was also told the reason why the latter declined to move, ana defendant then removed plaintiff in a most violent and unnecessarily sever? manner. The defendant, b< i:ig a man of much heavitr build and generally stronger than plaintiff exercised quite undue force in plaintiff, who sustained a very rou» 1: handling. Such a proceeding in the presence of the large crowd at the match was also most humiliating. No imputations were desired to be made against the capacity of the defendant as a police officer, who was recognised as a capable and usually painstaking official; but it was submitted that on this occasion he lost his head. Plaintiff was not seeking damages so much in the pecuniary sense, as he was aiming to vindicate his right as a lessee of thi seat for the time being to act in the manner he did, and to show that as a private citizen acting in a perfectly lawful way he should not be subjected to unwarranted interference by a police officer. It would be shown that the defendant by his rough handling of plaintiff on the steps <>f ihe grandstand also exposed plaintiff to a rather serious risk tu his personal safety. The defence hoped to prove evidently as an afterthought-that plaintiff was drunk. This was a weak attempt »o minimise the effect of defendant's action, as if plaictiff was drunk why was he allowed to be admitted to the ground, or why was he not arrested before as an inebriate? Further, if he was even slightly inebriated—assuming the worst aspect against plaintiff—and if he was sitting quietly in the seat he was lessee of, the officials and the defendant had no right to niol< b. him. A large number of witnesses would testify to the violence of the assault committed, and to the stata of plaintiff regarding his sobriety. No offer whatever had been made at reparation. James Joseph Kennedy, plaintiff, said he was a farmer residing at Tikitapu, Mauriccville. Witness stated that he paid for admission to the Anglo British football match o'i M*y 2°.v(\, paying also to he admitted to the grandstand. He took up a seat near the stpps in the front of the stand, and had been seated there fully ten minutes before any official spoke to him. Then one man, named Parton, said, "Sit where you are; you are all right," meaning evidently that some seats were to be arranged for. Then Galbraith, the treasurer of the New Zealand Rugby Union, came and asked witness to move, but witness took no notice of him. Defendant then came and requested witness to shift, this request b'dng declined. The defendant then tooK witness by the coat collar, dragged him along on his back, down the steps and on to the lawn. Witness only remarked "Thank you, Sergeant, you'll probably hear of this again." A friend named Callaghan, sitting in the stand, called out to witness to come and sit by him, witness accepting the invitation. The Sergeant made no further attempt tu molest witness. The seat from which witnpss was ejected was afterwards occupied by some one else.

By Mr Herdman: Witness could not say whether it vvps a footballer or a Rugby Union official who took the seat after. Witness sustained marks from the assault, though only minor ones. He did not know that the around was under control of the Rugby Union. He knew\Galbraith to be an official of' the Union. He did not remember Parton telling him not to go into the seat from which he was ejected. Galbraith did not say anything about the seats being reserved, 1 and the reason witness did not reply to him when he spoke was because witness did not recognise his official position. Witness was clear that no official

had spoken to him about sitting in the seat. He had had a few drinks that day, perhaps six. His recollection of the events on the date in question was pretty accurate. Witness would swear Parton never requested him to leave, and that no one told him that the seat was reserved, not even the defendant. Witness was prepared to contradict the Sergeant if the latter said he informed witness the seat was reserved. The Sergeant did not say "If you were sober and in your right senses you would go away." Defendant did not give wit ness time to ask the reason why he was acting as he was.

By Mr rownall: Not one of the officials or the police suggested to witness that he had had liquor. Tl>e only thing mentioned was the vacating of the seat. William Henry Hawkins, of Pahiatua, an ex-M.P., deposed that he too took up a "reserved" seat on the grandstand, on the same tier as plaintiff, only further along. Four people, including the Sergeant, requested witness to shift. Mr Herdman here admitted that no notification of the seats being reserved had been previously made. Witness, continuing, said no one attempted to remove him, and he stayed he sat. Michael Charles O'Connell said he was in the grandstand, but nut near the scene of the fracas. From the farther end of the stand witness saw the Sergeant dragging something—apparently a man—down the steps. Witness' attention was drawn to the occurrence by the people in the stand rising to see what was taking place. Witness afterwards saw plaintiff stand up on the grass. By Mr Herd.nan: Witness saw no one support Kennedy after he stood up, and witness could see plaintiff's head and shouljers over the heads of the crowd.

J. B. McKenzie, farmer, of Homebush, said he saw the ejection of plaintiff from the front of the stand. Defendant had a grip of plaintiff by the back of his coat collar, and plaintiff was dragged down practically head first. Witness considered the force used quite unnecessary—even violent. In witness' opinion plaintiff wus nit the worse for liquor, but rather perfectly sober. Witness saw no one support plaintiff after he arose from the ground. He walked up the steps in quite a usual way.' By Mr Herdman: Witness was not a friend of plaintiff's though he knew him, and had spoken to him. Kennedy was certainly not assisted up the steps from.the start. Witness did not know —except by hearsay —the cause of the commotion. Witness would not have ejected a person in the i*ough manner defendant did, but would have endeavoured to use less violent means.

By Mr Pownall: Witness' honest opinion was that plaintiff was sober and unobjectionable. Christopher H. Smith, farmer, who was in company with McKenzie, gave similar evidence. He considered plaintiff to have been quite sober. Witness had known Kennedy for about fourteen years. He believed plaintiff to have been sober and perfectly able to take c?re of himself on the day of the occurrence. George Hume, farmer, of Martinborough, stated that he and his wife were seated in the back ot the grandstand. The noise caused by plaintiff' being dragged down the steps sounded like the hauling along of a bag oi coal. Plaintiff sat near witness just after the ejection and conversed in a perfectly coherent and sober way. By Mr Herdman: Kennedy took a keen interest in the progress of the match, but had evidently not overlooked the ejection. Witness thought i Kennedy was perfectly sober. Thos. Riddell, stock agent, said he saw Kennedy dragged out from the stand. Unnecessary force was used. Witness was too far away to say whether plaintiff was drunk or sober. John Callaghan, of Wellington, employed by plaintiff's father, said he saw the ejectment from the back of the stand. Plaintiff sat quietly, and offered no offence to anyone. Galbraith spoke to plaintiff first, and the defendant after. Witness went down to Kennedy after he got up from the ground, and asked him to come and sit by witness. Plaintiff did so. The latter was far from drunk, though he certainly had ' had a drink or two. Plaintiff was certainly not handed over to two friends to be looked after when he got up from the ground. Witness thought violent force was used by defendant. By Mr Herdman: Witness could not say whether plaintiff had shifted his seat prior to being ejected, moving from one reserved seat to the other. David K. Logan, solicitor, ex-cap-tain of the Masterton Football Club, and ex-Rug Dy Union official, said he sat in the next tier of seats to plaintiff. Deftndant did not use much force in removing plaintiff from the seat, but afterwards the latter was apparently thrown down. It gave witness a great shock to see the way plaintiff was being handled. When witness arrived the were ail empty. The stand officials were acting with laxity, allowing persons to sit down in the reserved seats, and then asking them to shift. Apparently a consultation was held among the officials when persons refused to move, and ultimately defendant was brought. Witness could not see whether plaintiff was sober or not. By Mr Herdman: Ic was the duty of the Union to provide reserved accommodation for officials and visitors. He hardly thought the action of the Sergeant was justified in doing as he did, even in the interests of sport. William George Emeny, contractor, ot Wellington, said he saw Galbraith speak to Kennedy, who sat on the lower seat. Witness described the ejectment in similar terms to previous witnesses. He thought the force used was brutal. Kennedy walked up the steps quietly after his removal, and sat by witness. Plaintiff was not by any means drunk, and was behaving himself. John Fernandos, student, ot Wellington, Douglas Graham, hank manager, Masterton, J. W. Cochrane, land agent, Masterton, Bryce P. L. Clayson, coachbuilder, Masterton, J. H. Pauling, J.P., manager of the Farmers' Implement Company, Masterton, VV. Iggulden, carrier, Masterton, Ronald Owen, sheepfarmer, T. J. Porter, licensee of the Club Hotel, Masterton, Carl Halberg, farm manager, Alfredton, W. Macßae, farmer, of Stronvar, C. Hoffeins, farmer, of Mauriceville, all of whom saw the assault, gave evidence corroborative of that tendered by the previous

i witness on the main poinjts of the i ejectment. All considered that unnecessary force had been used. Mr Herdman, in his opening address, said the case may appear to the jury almost trivial, yet it had its serious aspects Plaintiff may say he did not want heavy ' damages, and that defendant was a capable officer and so forth, but it was serious because the defendant stood charged with a serious offence against the canons of his occupation. Defendant had been a. long time in the force, and had dune his duty well, and it was a grave attack on his capabilities. Counsel said it practically meant that in one Rense the fate of the Sergeant was in the jury's hands, not that he would be dismissed from the force, but doubtless the fact that he might be adjudged to have committed an error of judgment and duty would result in a black mark being recorded against him. On the legal aspect counselsaid the .Rugby Union had comple f e control of the ground for the time being. The Union decided to reserve two rows of seats for the proper entertainment of the non-playing members of the team, Union officials and special guests. Though no notification had been made of the fact that seats were reserved uffiials were placed to keep the seats unoccupied. A leading official of the local Union, Mr Parton, counsel was instructed,' had, as part of his duty for the day, informed plaii.tiff of the fact that seats were reserved, but it would be contended, and shown by evidence, that plaintiff was in such a frame of mind—whether from liquor or not would remain for the jury to decide—that he was determined to take one of the reserved Beats at any price. Witness would show tnat the detenuant had politely, courteously asked plaintiff to move, and exhausted all i peaceful means to induce him to do so. Plaintiff had, it would be shown, after actually having been removed from one seat, contumaciously set himself down in another reserved seat, from which he finally had to be ejected. A lot of evidence had been tendered,as to violence being used, » but there must obviously have been some apearance of violence, while as a matter of fact no unnecessary force whatever had been used, and but for plaintiff's own resistance not so much trouble would have been needed to effect his removal, which could have been accomplished quietly. George R. Sykes, Secretary of the Masterton A. and P Association, denosed to the ground being let to the New Zealand Rugby Union fur the match. In cross-examination witness said that no mention was made in the agreement with the Uniou that reservations were to be made of portion of the grandstands. David E. Parton, telegraphist, of Masterton, Secretary of the Masteiton Football Club, said his duty at the Anglo-Wairarapa match was to keep certain seats reserved on the grandstand. A great many persons endeavoured to occupy the seats, «itness preventing a large number. Not many seats were vacant in the grandstand when plaintiff arrived! Kennedy appeared to witness to be under the influence of liquor. Witness mention- , ed to him that the seat was reserved , the reply being they had no right to be. Plaintiff ultimately got behin

witness, whose attention was directed elsewhere. Galbraith, Treasurer of the New Zealand Union, inquired of witness how plaintiff had got wl ere he did, and on being informed ne told witness to send for a policeman. Sergeant Miller was sent for, a::d ha spoke to Kennedy twice, and finally tumid to Galbraith, saving, "Do you wish this man removed?'' The rpply being in the affirmative, plaintiff was dragged down the steps. Witness »aid he would not like to have been used in the same manner as plaintiff had been. No greater force was used than the occasion demanded. When Kennedy got up two men came to his assistance, helping him to his feet. They took him into the stand, one at • each arm. Witness beard the defendant say to Kennedy "If you w'ere not drunk you would not stay there." By Mr Pownall: Witness represented the Wairarapa Rugby Union. The New Zealand Union paid the £lO fee for the ground, and had control of the ground. Witness would not suggest that there had been no 1 time to placard the seats "Reserved." But for being in a reserved seat plaintiff would not have been ejected. G. Avery, Secretary of the New Zealand Rugby Union, deposed to his Union obtaining the use of the grounds through their agents, the Wairarapa Union. The A. and P. Association made no stipulation regarding reserving seats. The New Zealand Union did not with its own officers control the ground that day, the Wairarapa Union being left to managn the internal arrangements. There were seats reserved in the front of the stand, plaintiff occupying one, and being rather the worse for liquor. Witness was not present when plaintiff was removed. By Mr Pownall: Witness was not an active party to the arrangement with the A. and P. Association. The advertisement regarding the match contained no mention of a reservation of.seats in the stand. Plaintiff was not miscondiicting'himself, and would not have been removed from any but a reserved seat. Mr Galbraith was not on the ground as an official of the Wairarapa Rugby Union. Alex. L. Webster, of Greytown, Secretary of the Wairarapa Rugby Union, said his union acted as agents lor the New Zealand Union. Witness did not receive instructions to reserve seats from the New Zealand Union. Some were reserved on the authority of the management Committee at Masterton —members of the Wairarapa Rugby Union. Witness instructed Sergeant Miller to remove certain persons / from these seats. Witness only heard one person object to shift whom witness knew. Other persons were not physically removed except Kennedy, whom witness did not see ejected. The Wairaraj a Ruguy Union did not appoint Mr Galbraith as one of their officials for the day. Bertie Chapman, printer, of Macterton, member of the Management Committee of the Wairarapa Rugby Union, said he was one of the committee of three appointed by his Union to arrange details for the British match; Witness had received instructions fromTthe chairman of the Wairarapa Union to reserve seats for non-playing members of the Britisn team and Rugby Union officials. Witne?s was instructed to see that matters went all right at one end of the stand. Parton, as a football en

-thusiast, offered assistance, wliich j was accepted. I Neil Galbraith, accountant, of Wellington, treasurer of the New Zealand Rugby Union, said he attended the match at his own expense, but when he arrived he was authorised— j .not by resolution—to watch the .affairs of the New Zealand Union. The latter body took the gate receipts ■and paid the rent. Avery stated that seats had been reserved, and Parton drew witness' attention to these seats. Witness saw plaintiff in one, and spoke to him. Kennedy was drank, and mumbled something about having paid for his seat, and meaning to stay there. Witness then requested Farton to send for the police. When defendant arrived and saw] plaintiff defendant said "Why, the man is drunk!" Witness said "Well, he must go our." Defendant spoke in a persuasive way, and plaintiff resisted when he was first taken hold ■of, though later he seemed to collapse. Witness thought no unreasonable force was used. It was the custom at all the Knglish matcher, subsequently to have reserved seats for non players of the team. By Mr Pownall: No notification •was'made by advertisement at any of the matches that there were reserved seats. Witness was an executive honorary officer of the Union. Witness gave t,hd Sergeant no other reason for removing plaintiff except that he was sitting in a reserved seat. Witness did rot attempt to have other persons in the reserved seats removed. Witness did iwi >w.. .• .•<■ bpeak to the re >hu. the Committee of thf? New %>alanr Rugby Union that the Union should pay the defendant's costs ot defending the present action. Nathaniel Miller, defendant, Sergeant of Police at Masterton, said he was directed by Galbraith to the fact that a person was sitting in the reserved seats. Witness aslced Gal- , braith if he was a Union official and

he replied that he was. Witness j asked the man to leave the seat, as it was reserved for certain persons. He made no reply. Witness said "You're drunk, and if you were sober you would leave at once. You should move if it is only out of courtesy to the visitors." Plaintiff refused to move, and witness stood him up. Plaintiff sat down again, and on witness appealing to Galbraith the latter said the man would have to he removed. Witness repeatedly asked plaintiff to move from the reserved seat, and on his not complying witness removed him bodily. From the position of the steps witness thought it advisable to take the man down after him, and he carried plaintiff's head and should?rs close his ocdy. Just as witness was straight ening plaintiff up two friends came down from the stand, and took charge of him, otherwise witness would have locked him up. Witness did not remove others, though he spoke to them. By Mr Pownall: Witness had often had trouble removing men of small stature, and thought he removed plaintiff in the easiest fashion. Witness admitted he did not object to plaintiff returning back to the grandstand. Kennedy was not making himself objectionable. Hawkins, when witness asked him to shift, said he would not, as no notice

of reserved scats had been given. Witness admitted that in a conversation with cross-examining counsel he said that ho might have acted impulsively, and also admitted that he wished Kennedy to come and see him as he did not want the present pro-, ceeclings taken. R. H. Wood, manager for Kempthorne, Prosser and Co., Ltd., Wellington, who saw the incident, said he did not know Kennedy personally. He saw plaintiff stopped by the usher, and finally climb over the bark of a reserved seat and sit down. Witness had no doubt-Kennedy was the worse for liquor. Witness himself had taken up a reserved seat, but he moved on request. The defendant apparently used all peaceful means of inducing plaintiff to move, spending quite three minutes speaking to him. Witness thought the defendant was very ea?y with plaintiff in handling. Bertram H. Donaldson, chemist's assistant at Wellington, and J. E. Staple, partner with G. Mee, chemist, Wellington, gave evidence on the same lines. This concluded the evidence, and counsel then addressed the jury. His Honor, in summing up, said they had heard, from the plaintiff and twenty witnesses that the plaintiff was not drunk and was removed with much unnecessary force. On the other hand they had heard from the defendant and seven witnesses that the plaintiff was drunk and was removed with no unnecessary force. They would not value the evidence merely by numbers but according to the credence they gave to it. If the plaintiff was drunk then his removal was justifiable if without unnecessary force and as to this he directed that if the appearance of the plaintiff was such as to cause a reasonable man to conclude he was drunk then they need not consider whether the appearance presented was the result of alcohol or any other cause. For the purpose of answering the question they might then say he was drunk. If again reasonable notice was given that the seat in which plaintiff sat was a reserved one they might find he was a trespasser after due notice to leave and his removal was justifiable without unnecessary force.

The jury, who retired for two hours and thirty-five minutes, found — (1) That the plaintiff waa not in sucn a state of drunkenness as would justify his removal, (2/ That the seats were reserved in <i reasonable way and with reasonable notice to the plaintiff. (3) That the defendant used unnecessary force in removing plaintiff. They found for the plaintiff with £'- r » damages. ivlr Fownall moved for judgment and costs, which was entered. Mr Hollings intimated that a new trial might be moved for on the ground that no issue was put to the jury on a specially pleaded point of t!w defence—that defendant had acte I in a reasonable and bona fide manner in the due execution of his duty. Either a new trial or an appeal might no lodged; it depended on a consultation which counsel would have with Mr Herdmun. (The latter had left for W tiling ton before the case had concluded). His Honor fixt\] ;(U:ity for appeal Jit £2o.