QUESTION OF COSTS.

Wairarapa Age, Volume XXXI, Issue 3064, 8 December 1908, Page 5

QUESTION OF COSTS.

JUDGMENT M KENNEDY v MIiILER..

BY THE DISTRICT JUDGE.

JURY'S VERDICT APPROVED.

COSTS AWARDED PLAINTIFF

Yesterday the Registrar of the Wairarapa * District Court (Mr M. Foley) read at a special sitting of the Court an important written judgment by His Honour, Judge Haselden. The judgment was in respect of the case Kennedy v. Miller. At the last sitting of the Court plaintiff moved that a certificate be given by the Judge in terms of section 16 of the "Police Force Act" that His Honor approved of the verdict of the jury given at the trial of the original action, in which the jury found for plaintiff" for £5 damages on an issue asking whether defendant had used unnecessary violence in the execution of his duty. The judgment read was as follows: — "No authority has been cited in the argument on this motion, and I have been able to find no case that is of much assistance in determining the true intrepretation of the words in section 16 of the "Police Force Act, 1886," viz.—"And though a verdict shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant unless the Judge before whom the trial shall be shall certify his approbation of the action and ol the verdict obtained thereon." It may be said that this ■is no more than leaving the question of costs to the discretion of the Judge, in which case the discretion must be exercised judicially, and the finding j of the jury on questions of fact must not be ignored. I found no j difficulty in certifying that the case w&8 ft proper one to be tried in the , District Court before a jury, and I I have not seen any reason for i altering my opinion thereon; but to approbate the plaintiff's action, and the verdict obtained thereon, throws an additional onus upon the Judge. There is, it seems to me, a distinction between approbation and agreement or consent, though perhaps the distinction is a very fine one. A parent or guardian may approbate a marriage subsequent to its celebration, though he may have previously withheld consent or agreement. I think that, in order to approbate this action and verdict it is not necessary that I should feel that I personally approve of the plaintiff's conduct in bringing the action, or that, if I were trying the case without a jury, I would have found for the plaintiff on the facts, and for the exact sum given by the jury as damages. A Judge must disregard his personal view of the wisdom shown by a plaintiff in bringing the action, and, if the damages are neither immoderately large or small, must subordinate his own views as to what would have been the exact sum, if any, to award, to those of the jury. In this case, it I accept the finding of the jury on the issue of unnecessary force, I havi no fault to find with the moderate da-nages aw3rdad. 'lf,' I accept that finding, I cannot disapprove of the plaintiff's action to redress a wrong suffered. The question then resolves itself into whether ( disappove—that is. refuse to approve—of the finding of the jury on the question of unnecessary f6rce There was an imm nse b.)dy of evidence on both sides; the case was very ably presented to the jury by coujiH the respective parties, and the jury found that the defendant had used unnecessary force in removing the plaintiff from that portion of the stand where he was a trespasser. The plaintiff was not only removed with force from the reserved portion of the stand, but from the stand itself, and it seems to me that this alone was an excess of authority. The defendant could not have justified the removal of the palintiff from the gound, because he was trespassing upon a portion of the stand, and the defence that the defendant arrested the plaintiff because the plaintiff was drunk failed, and I think rightly failed. In my opinion, the charge of drunkenness was either an afterthought, or a mere excuse for the removal. The plaintiff was somewhat under the influence of drink, but not sufficiently so to justify arrest. My chief difficulty has been whether I could approve of the finding of the jury as to unnecessary force being used. I told the jury that unnecessary force might be described as more force than was necessary to 'effect the object in view—viz., the removal of the plaintiff, and the jury decided that more than necessary force was used. It was contended that to remove a resisting man down a flight of steps, it would be the best and gentlest way to take him with a firm grip of the collar, twist him round, reduce him from a perpendicular position to almost a horizontal one, and then pull him down the steps, so that his feet struck each step in succession as he was dragged down. The jury thought otherwise, and I cannot disapprove of their finding on this issue. After giving the matter the best consideration in my power, I feel bound to certify my approbation of the action, and of the verdict obtained thereon, and 1 allow the plaintiff his costs ot the action against the defendant, counsel's fee £3 3s, costs of jury, Court costs, and witnesses' expenses. The Clerk can assess these costs, and, if necessary, a formal certificate and order can be drawn up and signed." Mr C. A. Pownall acted for the palintiff, and Mr P. L. Hollings for the defendant.