S.M. COURT.

Bush Advocate, Volume XVIII, Issue 593, 15 December 1906, Page 4

S.M. COURT.

*> Yesterday. (Before Mr W.P.Jame*, S.M.) Skelley v Gurr, claim £130 8s Bd, balance of salary due. Mr Lioyd appeared for the plaintiff, and Mr Lusk, with Mr Blakiston, tor the defendant Caude H. T. Skelley • (recalled) deposed that the first he recollected about Charteris' insurance proposals was finding them on his desk They vrere in an incomplete state. Ho completed them. H- never sivv Mr Ciuirfceris on this occasion, and the information, required he got from Mr Gurr Never saw Charteris before date of plough. trial. If Charteris had been m the office on 28th June, there was nothing to prevent my receiving the premiums, because I could have told him what the amount of the .premium would be; subsequently sent an account for the premium, and cheque came to hand a few days afterwards. At the plough, trial I got new proposals, for the name of Advances to settlers office does not appear in these, a* Charteris informed me that the Settlers' Office ha I no interest m the Mangatoro property. I frequently wrote entries m the property register, and on looking at it I see there are several not indexed. I remember the instance in regard to Mr Holden's insurance. I wrote the letter, and, I suppose followed the usual custom of handing it to the boy; have no distinct remembrance of this particular letter ; have known boy to send a letter and omit the enclosures ; have had occasion to speak to the boy on the matter ; the non-sending of the declaration brought no loss of business to Mr Gurr, as the policy was renewed. Got message from Gurr on Saturday afternoon prior to going to Napier for delivery to Mr Dean. Understood premium had been paid, and no proposal made out. Mr Dean questioned him (Skelley) in regard to a receipt. He knew it had not been given on an accident insurance receipt form and presumed it had been given. on an ordinary receipt form. Did nofe know when Senk paid the premium until I saw cheque in court. Cheque was dated 29th September, I went to Napier on Ist of October (Monday.) Did not go to Napier especially to see Dean, but to see Mr Lusk about a court case of Gurr's. Got blamed for the fact that Mr Lusk did not take up Gurr's case. He merely delivered Gurr's message to Dean. Be Christiansen got no definite instructions ; fixed up builder's risk in respect to a house Christiansen was building for Mr Blakiston ; saw Christiansen on this occasion. Gurr asked him if there was any further business ; reply was that he had the house, but did not know when premiums in existence fell due. Asked Christiansen to let us know, bufc he did not. The first premium, apparently fell due on 13th November. I left on 24th October. Got no further instructions on this matter from Gurr. Rath'oone — Kemember renewal notice coming. It was in the name of the Bank of New Zealand, and was sent into Bank of New Zealand by boy. It is not customary for agent to check renewal list that come\s from head office. Gurr's insurance - Could not effect transfer until Gurr handed me the policies, which was never done. Gurr told me that this would have to be done. Took note of it on my pad. Pad was subsequently mislaid. To Bench : Never again mentioned the matter, probably overlooked it. The matter would not have been overlooked if I had had a proper desk. In reply to his Worship witness admitted that the duty of keeping his papers straight was his and not Gurr's. Witness said that notwithstanding Mr Brindley's assertion that the letters written to Gurr referred entirely to Skelley's errors, he asserted that they did not Mr Gurr did refuse to sign the agreement in respect to em- ! ployment. Mr Lusk called the attention of \ the Bench to the fact that this I was a repetition of the evidence given on previous occasions. i Mr Skelley, continuing, said Gurr could not truthfully accuse him of insolence prior to about two weeks before date he left. Would swear he never took a letter of any kind, either business or his own letter, from Mr Gurr's file. Cross-examined by Mr Lloyd, m regard to Mr Brindley's statement that he (Skelley) was lazy, witness said in consequence of his difference with Brindley he wrote to the Premier and stated his case. The Premier asked Mr Briudley to furnish a return of overtime worked during the past 3 months. His overtime worked out at 185 hours, or an average of about 3 hours a day. Brindley had no power to dismiss. Letters from Gurr to Brindley relative to requiring a competent insurance clerk were seen by ah the senior clerks in the office. Cross-examined by Mr Lusk :If Brindley said he practically dismissed him (Skelley) he told an untruth. Was no; aware that he was considered incompetent or lazy. Mr Lusk read cctraets from a letter from witness to the Board stating he (Skelley) undtrstood such a statement i\ad been made. Mr B 'wen left because he could not stand Mr Brindley. Briadley would dismiss all the men on the staff if he could, and was glad to get lid of witness. Mr Lusk : I should say so. On resuming after lunch Mr Lusk continued his cross examination in regard to tile payment of Sink's premium, ami produced Iho block of a receipt: io show that Senk had paid Mr Gurr ihe i'uii ;;mouutof the piv^iuui on the 2UcU September, and Mr Gurr v.r (p -aider date of Ist 0.-tober to ilr D an making exL-u-e for t!:e i;oa payment r'i pivimuui. Thought Mr Gurr told him that portion of payment of premium was -a ulc to }\hni JilcksOn Hud SI lVOOipl fiwen in ord nary form. Wroi- letttrt> Hold en biit co::i'l not iiidciipy ;u joit-v book, ai.su vvi-.iti. 1 to lloUi.Mi :-.<kuig if lie ever received letter, and received a reply thai. Le had not Wrote a letter to Dcau at Gurc's dictation, stating that premium had not been paid, and what L

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had told him (Dean) was a mistatement. Admitted taking bundle of papers from Gurr's desk on 11th October; did not read them througJi ; handed them to Mr Lloyd on 24th October ; kept them for thirteen days without doing anything "With them. Could have got someone else to copy them during the thirteen days. Mr Lusk suggested that witness had never intended to copy the letters. • Witness asked what right Mr Lusk had to make the suggestion. Mr Lusk said that was his business. Mr Skelley said he might keep his 'Opinion to himself. - The. Magistrate here told witness not to be impertinent, as he was there to ianswer questions. ; Mr Lnsll said Mr Skelley did nob aprpreciate his position as regards these letters. Witness proceeded to explain the circumstances which led up to his using the expression to Mr Gurr " Would he -ever grow up." He said he had been refused permission to speak to the boy, ;and any question he had to ask the bey had to be put through. Mr Gurv. This •he considered so humiliatiug that he •could not help retaliating. He had fully considered his theory that either Mr Guvr had made away with the letter to Mr Holden or the office boy must have mislaid it. He thought Gurr might have done away with it because he was so positive that the letter had not been sent, before the letter book had been -examined. He considered that threefourths of the letters written in the ■office were written by him, and he also did a great deal of other work. Neil Russell, clerk in Mr" Lloyd's .■ office, deposed that he had copied some letters from Skelley to Gurr. He noticed nothing particular about the letters until he came to a telegram which was marked " filed." He drew Mr Macdonald's attention to it, and asked him if he should copy that document. He was positive that the file holes were not thvoueh the letters when he copied them. Reginald iiacDonald, managing clerk ■for Mr Lloyd, deposed that while Mr .Russell was copying the letters he -showed him a brand on a telegram, and -asked if he should copy that. Witness .. replied "No." Witness examined the letters, and there were no other marks -or holes on them. To Mr Lusk : Mr Skelley may have shown the letters to him prior to them being brought to Mr Lloyd's office. He - had not discussed the matter with Skelley, except that he had advised him. on the subject of the formation of the contract. Mr Lloyd said he was able to call •evidence to show that. Mr Gurr had sta- - -led that he had a branch at Hastings — *" a statement which he had denied — and -he proposed to call a witness to prove rthis statement. His Worship said the point was not important, as the case could be decided r _-on matters which had been admitted by m both parties. i ' Counsel then proceeded to address the -Court, Mr Lusk arguing that Gurr was entitled to dismiss Skelley, because (1) ' •Skelley had removed private papers from Mr Gurr's desk, (2, he had misled Mr Dean about SeDk's premium, and ' -other instances of untruthfulness, (3) combined instances of insolence, as admitted by Skelley, and instances of incompetency. If, however, his Worship •considered Skelley was entitled to -damages, he was only entitled to such -an amount as would enable him to get other employment, and not to the whole •of the balance of the year's salary. Mr Lloyd followed, taking exception •to Mr Lust's law as to the relation of master and servant, and argued that the position' was rightly set in Corry v. •Ciousten and Co., in which it was held that an employer was not entitled to add together several instances of incompetency and insolence, but that ■ each instance must be strong enough m -itself to warrant dismissal. (2) The taking; of the letters was an isolated instance, and it did not come within the •-scope of the case quoted by Mr Lusk •{Deep Sea Fishing Co. v. Ansell) as in •that case there was a question of fraud. Here no such question is raised, the act ._■ being one of self defence, as without ■copies of the letters the contract could <not be proved. He asked his Worship (to gay whether the taking of the letters was not justifiable, and even if it was ;.•: <unjastifiable that it was not a ground for £ dismissal. ? His Worship, in delivering judgment, ■said it seemed to him that both parties Lad acted in such a way as no one would expect between master and •servant. He felt sure that Skelley •had not had a happy time in defendant's office. This may to a great •extent have been brought about by his •own conduct, but some of the actions of , defendant were not such as to create a .good feeling or such a feeling as should have existed between master and servant, notably his conduct on his return from the Hastings Show It would also, he thought, have contributed to a state of affairs if, instead, of i writing memoranda to his clerk, ke iMLd spoken to him and stated what faults , he had to complain of. He mentioned these facts because it might affect the of costs. He understood, and in fact Gurr admitted, that he was j anxious to get rid of Skelley, and it is j no wonder, if, after receiving such a | letter as Gurr. wrote. Skelley be- ! came dissatisfied. But still all this did not excuse Skelley for what ! .afterwards happened. He thought that S the plaintiff had been guilty d£ neglect .and misconduct. It is impossible to give a comprehensive definition of mis- I •conduct or neglect, which would justify ! ■ dismissal. The particular net justifying ■ dismissal without notice must depend ! upon the character of the act itst-lf, j upon the duties of the workman, and j upon the nature of the probable ; • consequences of the Act, but in < wry case the question must be .no ot fact. ; -On this point lie quoted T'earse v. Foster." In the case before him the : taking of the letters out of Gurr's drawer was an act which, would in itself entitle Gurr to dismiss plaintiff, and then there was the neglect of Skelley to .send the removal notice to the head office when Gurr removed from one j office to another. This was most important, as the consequences to Gurr

would nave been serious had a fiire occurred in his premises in the meantime. He felt sorry tor Skelley, as his position had been brought about to a great extent by Gurr, but judgment must be for defendant, who, however, under the circumstances, would not be allowed costs. W. L. G. Webb v. Dora Stevenson, claim jGL 2s, for poultry supplied. T'.is case was heard la<t Court day, when plaintiff was non-suited. He now called — John Jordon, who deposed that he saw a youog man with Miss Stevenson when she came down to order the poultry. Judgment for 11s and costs; 275. The Court then adjourned.