APPEAL UPHELD.

Press, Volume LXV, Issue 19644, 13 June 1929, Page 3

APPEAL UPHELD.

TRAM CONDUCTOR'S CASE. PAYMENT FOR LOST TICKETS. An appeal was beard in the Supreme Court yesterday in the case in which, the Christenurch Tramway Board recently obtained judgment in the Lower Court against Charles Leslie Stratton, a tram conductor, for £9 lis Id for the less of certain blocks of tramway tickets. Stratton appealed against the Magistrate's decision. The case was an interesting one, being a test ease as to whether conductors were responsible for the amount of the face value ©1 tram tickets lost by the conductors. His Honour upheld the appeal. The appeal was heard before Mr Justice Smith. Mr W. J. Hunter appeared for appellant and Mr J. D. Hutchison for the respondent Board. Mr Hunter said that the appeal was on a point of law against the Magistrate's decision in the Lower ll . r V The case was a test case to establish whether or not conductors were responsible under such circumstances. Stratton had lost a number of tickets. The facts of the losing the tickets were not disclosed, but there was no question of dishonesty. However, the Magistrate found that Stratton had been negligent. The finding inferred that another conductor had taken the tickets, but there was no proof that h*v had negotiated them. It had been the Court's opinion that 40 per cent, of the face value of the lost tickets was a reasonable estimate of the loss incurred bv the Board. It was alleged that there was a contract between appellant and the respondent Board, and that under rule 158 the conductor was required to pay for all lost tickets at their face value. He submitted that no contract had been established. A conductor had to work in accordance with the rules drawn up bv the Board. There was no evidence that the conductor's attention was drawn to the rule. When he was engaged he signed a letter and received a rule book. That was all that the cr.se showed. There was no evidence that api*ellant had his attention drawn to the rule. The question was as to whether the conductor had to pav the face value of the tickets if the Board suffered no loss. It was submitted that the rule recognised that the tickets could be honestly lost, literale was vague and uncertain, and it was submitted that respondent realised that fact when they only claimed 40 per cent, of the face value of the tickets. Assuming there was not a valid contract, then as to the question of whether one was to treat it as negligence of a bailee, there was no proot of loss other than the amount (Is, the cost of printing the tickets) paid into Court, and any inference as to any other amount was not sufficient. It was not clear in the statement of claim as to whether the loss was caused through negligence of a bailee, or a breach ot contract. If there was a contract to pay the face value of the tickets lost, then that part of the contract was a penalty and not a liquidation of the loss. He submitted that there was no contract and that there was no proof of loss other than Is.

Mr Hutchison said that according to the first finding, the appellant, through negligence, lost tickets of a face value of £24 lis sd. According to the findings of the Lower Court, there was a man in whose possession were tickets which he was in a position to dispose of. It would have to bo proved that the tickets had been destroyed on the spot by fire or other means. Then it could be said that the loss to the Board had been only Is. However, that had not been proved. In so far as the submission that there was no contract was concerned, a paper was signed by appellant, such paper referring, to a book of rules which were not signed. It was submitted that there was a clear contract between appelant and respondent, and lie .had known that the paper he signed contained conditions. It had been submitted that appellant's attention had not been drawn to the rule. But lie signed for a rule book which was given to him for no other purpose than to read. Several months had elapsed since the time he signed for the rule-book until the time that he lost the tickets. Therefore he had ample time to make himself acquainted with the rules. The fact that the amount was not fixed but varied in accordance with the face value of the tickets lost, showed that it was not a penalty but a liquidation of damages. His Honour said that if the respondent Board had claimed 100 per cent. of tho face value of the tickets, and it was subsequently found that the true loss to the Board was 40 per .-v.it. of the face value, then it would be a penalty. He submitted that, on Uie authorities quoted, there was clearly a contract between appellant and the respondent Board. Mr Hunter said that it was proved that someone took the tickets with the intention of passing them off, but there the proof stopped. It was not proved that a conductor had passed off the t i elects His Honour said that the case left open the conclusion that the tickets had never been negotiated, and appellant had been required to pay £9 14s Id when the Board suffered no loss. In his opinion, it was necessary for the Board to prove the negotiation of the tickets. There was no evidence to prove that the damages amounted to £9 14s Id. The appeal would be upheld, and costs, amounting to £7 <s, allowed to appellant.