DAMAGES CLAIM.

Press, Volume LXVI, Issue 20025, 5 September 1930, Page 8

DAMAGES CLAIM.

VERANDAH SMASHED BY TAXI.

QUESTION OF LIABILITY DISPUTED.

An action was brought in the Magistrate's Court yesterday as a result of an accident in the early hours of the morning of June oth, when a taxi ran on to the footpath near the corner of Cnshel and Colombo streets and carried away several verandah poles and also damaged a window.

The owner of the premises, George Pentecost Payne, a retired hotelkeeper, proceeded against Charles Seymour Trillo,. proprietor of the Gold Hand taxi organisation, and Douglas McGuire. a taxi-driver, claiming £75 as damages. Mr E. D. Mosley, S.M., was on the Bench. • ■

Mr F. D. Sargent appeared for the plaintiff, Mr W. F. Tracy for Trillo, and McGuire appeared, but was not represented by counsel. The statement of claim set out that on June sth, 1930, the defendant, Douglas McGuire, while driving a motor-car belonging to the Gold Band Taxi organisation, so negligently drove it that he collided with the verandah of the premises owned by plaintiff, with the result that he seriously damaged the verandah, causing loss and damage to the plaintiff to the extent of £75, for which claim was made. Mr Sargent, in outlining the case, said that on the date mentioned in the statement of claim, McGuire was the driver of a taxi which crashed into the verandah of the premises at 665 Colombo street, causing the damage tor which the claim was made. Hie ]>oint at issue was whether Trillo was liable for the damage; counsel maintained he was. There was no documentary evidence of any agreement that governed the employment of McGuire. The Arbitration Court had decided that the relationship between Trillo and his men was that of bailor and bailee, but plaintiff's contention was that the decision was decided bv the documentary evidence of a fixed relationship between the drivers and Trillo. It was contended also that Trillo exercised control over his men, and the relationship therefore resolved itself into that of master and servant. Mr Sargent quoted various legal authorities in support of that contention.

Mr Tracy maintained that the recent Arbitration Court decision held good in this ease also, and Trillo was therefore not liable for the damage. There was no evidence to show that the circumstances were any different in this case. There were no terms of employment, and Trillo had no control over his drivers. Mr Tracy quoted legal authority in support of his argument, and contended that the system used by Trillo was. one of hiring and not one of master and servant. MpGuire, in evidence, stated that he had hen employed by the Gold Band taxis since February, and at the time of the accident was driving a Red Band cab. He had no documentary agreement as to the terms of his employment, and considered that, the Gold Band organisation had power to discharge men at a minute's notice. A man named Day gave the drivers orders as to which stand they had to go to. and during the time witness was employed there a notice signed by Mr Trillo had been in the garage requiring the men to be on duty at' 7 a.m. each day. The drivers took"; one-third of the amotint they took in fares, and the other twothirds went,' as far'"as* he knew, to Trillo. Witness • had. not been told when to work, but he had worked 10 to 12 hpurs a day all the time he was there, and had had only one day off. He had asked for that. There were no specific instructions as to what he was to do apart from what to - l=ad mentioned.

Cross-examined' McGuire said that Day was a man who was in charge of the dispatch office,' and the Gold Band drivers paid so much each* day towards his remuneration. Witness added that he was not a Gold Band driver —he drove a Red Band cab — and he had never contributed anything towards the payment of Day. Day had the power to engage or pu't off men. Witness was supplied with petrol and oil by the firm. Trillo also gave evidence, and denied that he had any control over his drivers. In reply to a question by Mr Sargent he admitted that he gave directions to Day. Mr Sargent, addressing the Magistrate, said that the case had a very wide significance, as it. meant that if th© decision was against him, motor drivers would' have no protection if they had their cars damaged by taxis under this system. _ The Magistrate said that the question was one of considerable interest, and he would reserve his decision to consider it.