THE COURTS.

Press, Volume LVIII, Issue 17394, 3 March 1922, Page 5

THE COURTS.

SUPREME COURT.

CTvTD SITTINGS. (Brfote Jiia Honour 1& Justice A d am 3.) A WAITER'S CLAIM. Robert Joseph Chapman, waiter, sued the Ltd., for £22 10s, alleged to be Mr C 6e « rVlC€S »»*«•*• ««l Mr' O i b 7 a li aM,eare!l , f " Plaintiff, -»r u. i. j. Alpera, with him Mr E. i-wjneliam, represented the defendant company. JhT^Jf 0 * the , Magistrate's Court,, though the amount claimed was comparatively rfcriL We wcro lai * e ***«* involved. S?5 the , Canterbury Hotel aud Restaurant Jiinployocs award, which came into operas Uoa on May 9th, 1921, and superseded a ?!?!?" award - Vnder the new award, the conditions under which the men were work- • i g - T?i e jutoed, and it was contended that Plaintiff had been paid short. Clauses 5, Bf and 11 of the award were in question, wauae 11 provided for certain, allowances lor meals, concerning which he desired to lay argument before his Honour. It was contended that a man was allowed so much a day meal allowance, even though he worked only half an hour. His Honour said that if the men's employment terminated at 11 a.m., then meale would have to be providol for-the whole day. j The employer might offer the men' their three meal 3 at once. Mi- Thomas, in further reply to his Honour, said the Union had eet out to stop employment of waiters for an hour or so at a time. The plaintiff worked as a clerk during the day, and could afford to work as a waiter at night at lower, rates than the regular waiter. Robert Joseph Chapman eaid ho was emplayed during the day as a salesman by Edward Recce and Son. In the evening he acted be a waiter. He was a member of the Hotel and Restaurant Employees' Union. He was paid £1 10s a week as a waiter. He claimed on the basis that he was a. full tune waiter, and was entitled to a 10s bonus and meal allowance. 1 Reginald A. Brooks, secretary of the Canterbury Hotel and Restaurant Employees' tymon, said he explained to the manager and directors of the Rendezvous that full w-ages would be claimed for all night workers employed. The definition had been included in the award to .prevent the employment !of part-time workers. Since the action had been brought, the Rendezvous had adopted witness's suggestion, and full-time workers were now employed. To Mr Alpers: It waa true that some of the part-time waiters had not paid their subscriptions of 6d a week because they were not .paa-i full-time rates for working' two hours a night. Mr Alpers said the Union took exception to the part-time waiters, because they wore keeping- legitimate waiters out of employment. vThe Union obtained an interpretation of the meal allowance for the purpose of excluding part-time waiters. The Rendezvous was the only establishment in town which employed. men as waiters at night. It waa common ground that from May 9th these men were not' "single-meal" men. Counsel submitted that no case would be

found in. which an employee «?» £ ! Court and claimed for work which M * um was called for* the def O and his Honour heard council m JC & argument. Decision was reserved. ,^ LAND CLAIMED <FHOM A DECEASED PERSON. . In George Template* (Mr K- .£ <*!££»■ v. Peter Eoberte, plaintiff *?"tto «on of land. The defendant question arose as to whether an impM*""" decree could be made. „rftntMr Gresson, in moving for » **«» Idling possession of the land, eaad the deien dant had entered into an »S ree^ n VTJ£„t chaso, but W not fulfilled the J&f* o*™ 0 *™ before hie death. Plaintiff abandon any monetary claim, had died subsequently to the tune in Wflica ho could! have filed a defence. His Honour said it was P,™ vld€d \j„ r fl n \ion action should not be abated by «"*•»« of death if the action sumved, mean that the Court oould pronounce an order upon a defendant to that claim, the defendant being dead? ~ . Mr Gresson submitted that it couldl not m regards money, but it could »«**»; possession of land. He asked who could_be substituted as a- party to the defence, tno deceased had no legal representative. His Honour said the case a » ",""*!■ unusual one. He could not make a decree against a dead man. • , ... i 1 At a-later stage coursel intimated that the wtdow of defendant was P"P"«L™ give possession on March 81-rt, and as conn eel had! no authorities to cite he would not proceed further in the matter. „„k„„ Hh Honour commented' that the action could only be continued if defendant, pnor to His d'ceaie, had appointed an «^ to '- or administrator of hi» m the absence of an executor or administrator the action could not survive. MOTION FOB NEW TRIAL In John O'Connell (Mr E. W. White) v. Christchurch Tramway Boj'd 'Mr M. •). Gresson with him Mr J. H. Upham), the defendant Board: moved for a ™* *£"" in which argument was openeo, on December 15th, 1921. , , .... ... • The plaintiff, a carrier, claimed £277 lfe in respect of damages arising out of a collision with a tram car at the ipteracctioii of OlHvier's road and Ferry rood, and at the heaving be was awarded £202 15s lOd. Mr Gresson's main point, was that there had been contributory negligence on the part of plaintiff, an* said that unless plaintiff could show that defendant's motorman had the last chance of avoiding the accident, v his claim must fail. It was submitted that the last chance- of avoiding 1 the accident Had been with plaintiff, who, before the impact, could have stopped or swerved-. The onus was on the plaintiff that defendant had the last chance of avoiding the aecidont. According to plaintiff's evidence the motorman had 5.7 seconds in which to avoid the accident, but the tram car was not able to go at a greater speed than 18 miles an hour, and to have covered the distance in the time it would have required to have been going at 23 or 23 miles on hour. Counsel suggested that all that, should be reouired of molormen in approaching infcersecticno was to sound the gong and not necessarily to slow down. Mr White saW there was ft regulation of the Board compelling motormen en approaching intersections, traffic or no fra.'ffic, to reduce speed'. It was, of coivree. obvious that the time-table on the Sumner lino cquld not bo adhered-to if tlu's regulation wer* ftriotly observed. Counsel submitted that th© rr.ctorman, when ho Baw the carrier's cart emerging should have applied the brakes, even if he failed to ring the pong, and if hft had he could have avoided, the accident. He claimed that the plaintiff had excreiwd extreme caution in emerging from Ollivier's rood. No explanation had b»en given rf the fact that it took 136 ft an which to pull up the tram-car when, at the ppeed it was alleged l to h>ve been going, it should have been possible to pull it up in Bf> feet; from the. absence of this explanation the jury inferred that the tram-car -was going at a higher rate of speed' than that alleged. "When the car was 80ft away from tho carrier's cart tho motorman practically' ndmitled that then he had his last opportunity to avoid the accident: counsel submitted that hira last opportunity was at 160 ft nwny, wh e .n the motormap fir3t saw the cart's light. Mr Gresson briefly replied and submitted ' ; that the evidence of plaintiff's negligence- was ; so clear that it had been unnecessary for 1 counsel to meet the allegation of negligence j on the niirt rf defendant. j His HonoiiT said the ouestion raised was an important one, and should not be decided ] hastily. It wnrc clear, that whatever viowa i ths judge might have about tils case the ' verdict of the jury should not be disturbed J excent on well recognised grounds. He j would take time to consider his decision." j The Oo'.irt rose till 9.80 a.m. to-day. j

MAGISTERIAL. (Before Mr "Wyvern Wilson, S.M.) DRUNKENNESS. Stanley Geoffrey Mathiaa was convicted and discharged on a charge of drunkenness. Far procuring liquor during l the currency of hie prohibition order he woe fined 20s and costs. Robert MacCartney, a second offender, was fined 10s «ud costs.' IIXEGAIi POSSESSION OP CAR. Ivan Major Martin Ming wag , charged that "he did unlawfully and without colout of right/ but not so as to be guilty of theft thereof within tyie meaning! of the Crimea

Act, 1908, take a certain motor-car, the property of William Edward Stevens.'' Evidence wag given, that the car .in question had been left outside ,th© Winter Gardens on the evening of February 25th. Later Stevens saw e. man leaving the car. Tho engine, was then running'. Half an hour later the man had heen seen in the car again. When accosted he struggled and got away. When arrested accused made a etatement admitting that m response to a challenge from two friends he had cranked the car. In attempting to push away one of the men who had accosted him he had ./tracked him on tho side of the head. Asked by the Magistrate whether he had anything to say, accused stated that the affair was the outcome of "some fun among

three men," who had "set out 'o nftint the ; town Ted." The- Magistrate stated that in his opinion the accused had been guilty rf an offence. It was not necessary that the car 6hould be moved off. Ths uct of taking possession of th& car constituted an offence. The accused had had lather a chequered v career, and was still on probation for an offence at Wellington. However, he woxild not he 'BT.t togaol. A fine of £5 and costs would bo imposed. The fine was made small as the car had svstnincd no damage. CWIXi BUSINESS. Judgment was given, for the plaintiff by default in each of the following cases: Booth Macdonald and Co., Ltd. v. ■'£.. H. •Harvey, £l2 7s; Aifred William Scarr v. ' H. P. Prcbble, Lather C. McKenzie, and i Eliza McKenzie, £3O 15s; Garrick, CowliTthaw, Alpera, and Nicholla T. W. D. KinI ninmcuth", £2 2a; Franks, Hunter, and 'Lyons v. W. C. Saunders, £4 13s; J. Ballantyne and Co., Ltd. v. William J. Wareham, £-22 7s 9d; sums v. Vivian K. E. Deacon, £2 6s fid; A. G. Healing and Co. v. Holmes Bros., £l7 13s 6u; W. H. Simms and Sons, ltd. v. J. It. Graham, £l6 2s 7d; same v. . The Durham Press Co., £lO 2s 3d; same v. Stokes, £l2 9s 8d; Weeks, Ltd. v. F. F.. Kirbv, £2 8s lid: Hastic, Bull and Pickering, Ltd. v. H. F. !e Fleming:, £1 15s; The Distributing Agency, Ltd. cv. H. Chisnall, £8 8a; Ernest Claude Thompson v. F. A. Close and Elizabeth Mary Close, £ll Gs 6d; .Eeid and Gray, Ltd. v. M. Quinlivan, coßts only; Massey, Harris Co., Ltd. v. C. R. , Lano, £l6 IBs 3d., • ! Donald Herbert Doak wm ordered to pay ! J. Ballantyne and Co., Ltd., the sum of £3 2s (-d, within three days, in default throe ' days' imniisonmeut. i *F. D. Kesievoh (Mr W. F. Tracy) pro--1 against W. Pnton (Mr D. S. Murchi<xm), on a judgment summons for £39. The ; summons was dismissed, there being no i pi - cof of means. • j' John Eajlton (Mr D. S. Murchison), >roc?r, ! Jeff )Rkfim,ond # proceeded, gainst W. T. Green, poultry-lKeyer, of Burwood (Mr L. W. Geo, instmctad by Mr A. J. Malley), for ,?8 23 Cd for' goods Miivolied. Defendant denied having purchased th-? po?ds. Judgment was (riven for plaintiff for the full amount, with costs. IN OTHER PLACES. A DIVOHCE CASE. _ (TRESS i ••SOCUT.iON TELEGRAM.) WELLINGTON, March 2. In the divorce case, in which the woman ' co-respondent intervened to clear her r.anie, the Court held that there was no evidence; of adultery. Mr Wflford gave notice fcr :r new trial. • NAPIER CRIMINAL SESSIONS. (FSESS ASSOCIATION TELEGRAM.) NAPIEH, March 2. A motion to strike out 13 ot the charges Egainst Thomas Kenry . Redshaw, secretary ol Court C'aptai:i-Cook, A.0.F., of the theft I oi the iodge funda, was. dismissed by Mr | Justice liecd in the Supreme Court to-day. The accused wa9 thee iried on. charges o: tho theft of sums totalling £76 153 2d, and with omitting to make entries ia lhe boots, with intent to defraud. Alter » retirement of four hours, the jury failed to agree, and a naw trial was ordered for tho nest sessions, in June.