AN APPEAL CASE.

Wairarapa Age, Volume XXXII, Issue 9565, 11 August 1909, Page 5

AN APPEAL CASE.

HODGE v. NUNN. WELLINGTON, August 10. At a banco sitting of the Supreme Court to-day, before his Honor Mr Justice Cooper, an appeal was heard in regard to the decision of District Judge Haselden and a jury of four in the case of Thomas Hodge v. Robert W. Nunn, fariner, and owner of the Longbusb cheese factory. . The facts were that Hodge, who had been engaged by Nunn for the season 1908-09, was ditmiseed iast February, and wa3 paid up to the time of his dismissal. He his employer at a sitting of the District Court at Masterton for £7O, damages, tie amount which he alleged to be due as the balance of his season's wages. Defendant contended that he was justified in di?missing Hodge on the grounds that he was negligent in looking after the manufacture of cheese, and that he wrongfully took cream for his own use. The judge directed the jury to find for the defendant if the plaintiff was utterly incompetent, or if by reason of wilful negligence .his' work was rendered valueless, or if he dishonestly took cream; if otherwise they should find for the plaintiff for the sum of £7O, less the amount which they considered he had earned at other employment. The jury returned a verdict for the plaintiff for £4O. Defendant moved for a new trial before the Dj-mict Judge on the ground of misdirection,- but the District Judge refused to grant a new trial. Defendant now appealed to the Supreme Court on the ground that the judge had wrongfully directed the jury on a point In stating the case for the Supreme Court, the District Judge asked, inter alia, is the appeal properly brought? And is the direction of the District Judge right? Mr H. F. Von Haast an JMr H. C. Robinson, of Masterton, appeared

for the appellant Nunn,, and Mr C. A. Pownall for the respondent. After he.iring argument his Honor decided to order a new trial The District Judge, he said, had raised the question that there was no valid ground for the appeal, but section 111. of the Consolidated Act. then in force, gave the right of appeal to the Supreme Court from the direction of a judge ot the District Court on any point of law. His Honor therefore held that the appeal was properly constituted. His Honor considered also that soma of the directions which the judge had put into writing and handed to the jury went too far. A skilled employee was expected to exercise reasonable skill, and gross incompetence would justify dismissal. If the judge had explained that "utterly" incompetent merely meant "grossly" incompetent, he would have had authority for his direction. The judge was distinctly wrong in his direction that it was not sufficient for the defendant to prove that his servant's work was rendered valueless through negligence, and that he must prove wilful and intentional negligence. An employee could be dismissed foi habitual negi ligence, or for one act of negligence, which amounted to real misconduct. As the District Court was now abolished, tne case would have to come before the Supreme Court with a jury, or before tiie Magistrate's Court. Air Pownal! said that his client was i a poor man. »uid he would prefer to hive the aae tried bttore the Magistnte at Ma?terton. I Seven guineas costs were allowed I against the respondent.