THE COURTS.

Press, Volume LVII, Issue 17316, 30 November 1921, Page 4

THE COURTS.

SUPREME COURT. CIVIL SESSION'S. (Before his Honour Mr Justice Adams.) CLAIM ON INSURANCE POLICY. Lawrence Irving Doyle labourer, of Lo-b-urn, and Norman Maclar.sno Fulton, .armex. of Gisborne (Mr 0. T. J. Alpers.. with him X> F W Johnston), proceeded against the Rovaf Exchange Assorar.ee Corporation (Mr M. J. Gresson) for the sum oi £IOOO. In opening tie ca.e. Mr Alpers- Mid thai the claim arose out of a motor coll»»n. the details of which would no, trouble . J 3>e accident, vmch occurred on July ±'in, 1920. when Fulton was Tehirmng iiom a .hooting- match at had rcs-iutcd m the nlaintiS Doyle, a returned soldier a leg. Dov'e had been riding a, with which" Fulton's oar collided. Fulion had admitted that he was driving wh-n Doyle h-£L c'aimed £-X>oo damage® ega.ir.st him he had not contested (he acaon, but had confessed to £ISOO <1 a mage--. J u f° r tunatelv, Fultor.. who wa.s a. farmer, had, o* in" to the fall in the pneo oi woo and o.her i&xrrinx commodities, been -unable to pay, th™ yet. However, the point m the «£ was that- Fulton had a, poi-.c> for iIOOO witu thn defendant compauv for & thud part., Ij-k -4 other that'the Assnrwce would pa-v out- that amount any ittjurj done to P a wsvfarer on a rond. The company had set up certain legal defence. , and said that, under the oH-he accident, it v.-as not bound to pa} o t. Ho ever, any contract was binding on Uepart.cs to it, «ld the facts of the accidentd.d net tl'rln Fulton did not know of fact one lamp of his car was out at the toe of the .accident. On .the other > hand, Dovle who had been th* victim of tlu acci knew that both larrps were ahght,e..a he ly bJJ d&™> a damaged or un«,fe Edition, and tlio main the iurv to decide was whether or not FvUt t> "taSly drove a damaged or uneafe ca--Th^ew, Mr Alpers continued, another define.* that Fulton at th 3 time of tlie acciden kr vine a car without a certificate of to driv<?. That involved a. point of Uw and was for the Judge, not the jury to j } j TTowAVpr it imsrlit bo said thot tns the time " f ,^ e Um u Couniy, which a, few months m uo „™ r tificate while the also did not dem«nd a wtick accident occurred in the Asiuey *. com . had a by-law if petence, but w^ic k y c a«oiiable and bad. thedefendant company that It wa held by made the car knowthe absence of one "o a * f ar na the ingly damaged o L^ o rxerned. As a. matter plaintiff car could be looked of fwt, only scratch on the upon as not aama„ > -iprnreted to mean mudguard, could easily ta H waa "damaged." 1' <> r tj?« P 1 " t the car that, if the Y* T V trifling had been ?™ e °: n ?°is ' that only, ot ij„u ha'd nothing .rhatthe a,beence th ?."accident,or the safety ever to do with the acciaeni, r TJle or non-safety «®iitwn dc cide was jnarn question for .. tao wingly driven whether or not Fulton n _ Fulton kn6W a car damaged or u head-lamps ffif S. sr had been aug" . f ne collision, and, miMßsm apparently proved by th it he h lSr finished Hs drive by ar Ia „.j_„ a ll to the detriment of tne car. j. suoh circumstances it was not likelv that Fulton know tkat one of his lanipft had gone out, and it was on the defence tha,t the bar den lav of proving that Fulton knew that ha -nasi driving a "damaged or unsafe car. Mr Gresson said that there was no dispute as to'the, facts of the case. He submitted, however, that the "knowingly driving a. damaged or. unsafe car" part of the.question ™ae. <£ e for his Honour, and not for the jury. It was a question of, tho construction of. a document. The "knowingly' part was. of course, a question of .fact, but Mr Gresaon | submitted that the rest of the clause was a point of law, and not of fact. _ Hia Honour ruled that the whole question was one on which the jury, subject to tile direction of the Court, should pass., a verdict. Of course, after the verdict had been gwen it was open to Mr Gresson to challenge tho I direction. „ • . ... Mr Gresson said that he would be. satisfied if his point were recorded. . Evjdenoß in suipport of plaintiff s case w* B given by the'two plaintiffs, Michael Doyle and David Crozier. ' Mr Gresson .did not call evidence for tho defence, but- addressing the jury, eaid that the action Tyasi for the benefit, not of Doyle, but of Fulton. In the circumstances of the accident was the claim one upon which any insurance company would 'be lilcely to pay without question? A car with only the near headlight burning was, Mr Gresson submit; led, a. car clearly - in an "unsafe condition." Doyle must get the money he claimed, but it should "be paid by -Fulton and. not by the defendant company. The following-issues were put to the jury : (1) Was the car, at the time of the accident, being driven in a damaged or unsafe condition? (2) If "yes," in what respects was it damaged or unsafe? (8) Did the plaintiff Fulton; the car was eo damaged or unsafe? After a retirement of a<bout 40 minutes, the jury returned with a negative answer to the first question.- , After legal points had been argued/ Mr Alpere moved for judgment for the plaintiffs for- £IOOO, which was entered, with . costs, second counsel being certified for, disbursements and witnesses' expenses to be fixed by the Registrar. | MAGISTERIAL. TUESDAY. (Before Mr S. E. McCarthy, S.ML) DRUNKENNESS. James Ellmers wa4 convicted and discharged oh a charge of drunkenness and for a! breooh\ of his prohibition ordeT was fined £2, in default seven days' imprisonment. REMANDED. Frank Rissell (Mr W. J. Hunter) charged with having indecently assaulted a female aged four years, was remanded to appear on December 2nd. Bail was not allowed, i VAGRANCY. Jose.ph Pearson appeared' on a, charge of being fan idle and disorderly person in that he w«s without visible lawful means of support. ■ A constable stated that defendant was without work, and. that he wae a night prowler. Accused was sentenced to three months' imprisonment. BROKEN ORDERS. , Henry Small, charged with having broken his prohibition order, was convicted and fined £B, iri default 14 days' imprisonment. Bea/trice Louisa Cooke, on *'similar charge, was convicted and ordered to come up, for sentence when called upon. ON LICENSED PREMISES. "Walter Nickolls (Mr W. J. Cttoroft Wilson) and Samuel Walker,'charged with being illegally on licensed premises, were each fined 10», in default seven days' imprisonment, BREACH OF FISHERIES ACT. John Digby, acting manager for the North Canterbury Acclimatisation Society (Mr _K. G. Archer) proceeded against JVilliam Michael Hantz, fisherman, of Lakeside, under the Fisheries' Act, 1908, for having netted trout at Hart'* Creek. Defendant pleaded not guilty. Mr Archer stated that defendant had been fined £2 in September, for a similar offence. No tfinger had been employed by the Society for some, time, and during that period' certain fishermen, had' ran riot, and had taken enormous quantities of fish out of the rivers. Evidence was given that defendant had been e'een taking trout out of a net set across the mouth of Hart's Creek. The net was inside the pegs which mark the nearest space where nets are allowed. Accused was convict-el and fined XlO and coets, and was given one month to p»y, in default one month's imprisonment. : MAINTENANCE. Helen Hunter (Mr C. Holmes) was ordered to pay 6b weekly towards the support of her mother. An application for a variation of a main-tenance-order against A. L. P. Gibbens (Mr R, A. Cuthbert) in respect of two children in a home, wa3 granted, the arrears being remitted *aud maintenance fixed at 2s 6d • week for each child. . Robert Court was oidered to pay maintenance at the rate of 12s 6d, in respect of a child.. He was also ordered to pay arrears amounting to £5 19s 9d, and confinement «x----penses £2O 17s. 6d. Defendant was ordered to find security in self £2OO and one other surety of t£2oo. For the disobedience of a maintenance order, Martin John Mullaly was convicted and provisionally sentenced to one month's imprisonment. John Clover Jackson (Mr W. R. Laecelles) for disobedience of a maintenance order, was convicted and sentenced provisionally to one month's imprisonment. Mr B- A. Cuthbert appeared for oomplainant.

Cedil Stewart Bidwell (Mr F. Tracy) for disobedient© of a maintenance order in respect of his wife, Nellie Eustina Bidwell (Mr R. A. Cuthbert) was provisionally sentenced to two months' imprisonment. Richard Atkinson, on a similar charge, was convicted and provisionally sentenced to one month's imprisonment. Mr R. Twynehem appeared for complainant. Adelaide Olive Barritt (Mr R. Twyneham) applied for ft variation of a Maintenance order against Ernest Augustus Barritt (Mr W. F. Tracy). Defendant was ordered to pay 809 a week in respect of hist wife and 10s in respect of his child. William McDonald was ordered to pay £2 per week towards the maintenance of his wife, Mary McDonald, and his rieven children, the first payment to be made on Tuesday r.ext, Albert EdwaTd Harwood 'Mr R. Xwyneham) wa« convicted and provisionally sentenced to two weeks' imprisonment, for disobedience of a maintenance crier in respect of his wife, Maud Harwcod. IN OTHER PLACES. CHARGE OF ASSAULT. (PRESS association* telegkau.) TACRANGA, November 29. At ths Police Court, Christopher Niven, a local ooat builder, was charged, that, on November 26th, he did do grievous bodily harm to William Churchill, Cletrk of the Court., by striking him on the head with an iron pipe and fracturing his. tekull. As Churchill was in hospital ho could not appear. The police application for a remind tor eight days was granted, bail being allowed.