POWERS OF PUBLICANS.

Dominion, Volume 1, Issue 210, 29 May 1908, Page 9

POWERS OF PUBLICANS.

■ —a THE RICHT TO EJECT. A MAGISTRATE'S DECISION. Mr. S. E. M'Carthy, S.M., gave, his reserved judgment at Dannovirkc on Wednes- '! day in tho case nf C. I'. Hemmiugsen v. W. H. Mends, in which £73 was claimed as damages; for an assault alleged to have been committed on plaintiff, by defendant in the Masonic Hotel, Dannevirke. ; His Worship stated- that the plaintiff was 1 a resident of , Daiuievii-ke, and defendant a ' barman at the hotel.' During tho past 20 years, plaintiff had had 30 convictions for drunkenness and disorderly conduct, and similar offences. Ho had frequently given trouble to licensees by refusing to quit when asked. Plaintiff stated that defendant i turned him out of the bar roughly, dislocat- \ irig his right elbow joint. Ho had not refused to go, and was quite sober. Tho evidence for the defence was that plaintiff, who was under the influence of liquor, refused to leavo the hotel, and threatened defendant with , a stick. Defendaint wrested away tho ■ stick, and. • tried, unsuccessfully, , to lift plaintiff, who, had sat down on the floor. ; At tho request of the'licensee, Mr. Cotter, - defendant then left plaintiff alone, and he ! went out soon afterwards of his own ac- ( cord. Plaintiff did not complain of any injury before,leaving tho hotel. The weight of evidence was altogether in favour, of'tlio-do- : fondant's .version,- which his - Worship adopted. "I am bound to say," the judgment '; stated, " that, .as a rosi'ilt of all tho ; evidence, I am unable to find that it'lias been proved my , satisfaction that the injury which plaintiff undoubtedly sustained was caused by tho defendant. It is not at all improbable that it may havo been caused by plaintiff himself. Assuming, however, it was tho defendant who, either directly or indirectly, caused the injury, wo have'now to determine the legal position. " It is hero to bo observed that the defendant was 011 the night in question the ! alter ego of .the licensee, -M. Cotter, and it is clear that whatever defendant did, was'done, if not at'the direct request of his employer, ' at least with the latter's full knowledgo and 1 ■tacit acquiescence. What, then, were, tlio rights of the licensee-in respcctof tho plaintiff, on this February 19? To determino this , question, 0110 must considor the liability to 1 which, licensees arc subject. In : the first placo they - are liable for the ' acts and . omissions, of their servants and suffered within the .scope ' 'ot .. tho servant's authority. - This' was decided in .Commissioners of Polico v. Cartmaiil (L R. 1896, I Q.B.D. 655. and M'Robic 1 v., JITO-den-. 7, Gazette Law Reports 118); ' and in many other eases. 'Further;''the ■ Licensing Committee may at.-any quarterly meetiug determino tho license if it is proved : that the ■ premises, the subject thoroof,: are ' conducted, in an improper manner (sec. 76 ! Act 1881); the reney.'al of a-licoDse may be ■ refused for tho samo reason, (see subsection i 3 of .Section SI of thc\same Act); tho licensee is, liable to penalties, coupled with endorsement and forfoitiiro of license,," for - permitting, drunkenness or violent or quar- 1 rolsome conduct, or for soiling liquor to a , person already' in a- state of intoxication , (see Sections 146, 150, ,205, .206,' of Act -of 1881, and- 33. of Act of 1904). ,'l'ho licensees aro subject to other liabilities just as serious, , but. those, cited, seem to-he these germane . to the present caso. These then' being the' 'liabilities of licensees, jt is only reasonable , that they have co-relative rights to tako all such steps as may bo reasonably necessary, not only to cause an unlawful.. stato of, things to cease to exist, but to prevent such a state of' things from ever commencing. To say that a licensee lias - .liot-the-power to : nip-'in t-lio bud : 'a'riy, 6ven ' the tendency in the " direction of i prohibited acts: or omissions'• would be' to 1 bind him 7 in fetters , from which'"it would bo 1 impossiblo, to escape, : until" .lie-;' is. liable',to 1 penalties. Undor such-a state of things 110 1 ■licensed , person, could conduct 'a respectable - houso or hope, to obey the many and -ondrous mandates'of the Legislature. - . _ " Theso then boing in a . general! way- tho- I rights'and liabilities of .licenseos, it follows that the servants of licensees acting within : the general scope of thoii 1 • authority are invested .withauthority .to. tako. all 'such ' reasonable steps to .'.prevent their, employers being subject to . penaltiesto that end,' thereforo, whatever licensees may lawfully 1 do to' preserve order in licensed premises, ! their duly authorised servants may also doi Having made these general observations, it becomes our duty to inquire what aro tho specific 'mutters of law which arise for decision 011 tho facts as found. : These matters 'are as follow:—' 7 " (a) Was tho licensee justified in refusing to supply plaintiff with alcoholic refreshment cither generally or on the : night in question.' - ' ... " (b) . Was defendant, justified in attempting to eject, tho plaintiff? . - " (c) Assuming-defendant had a .right- to eject, did lid use more force than was reasonably necessary? • , - ' " Taking . these questions in order, tho first is set for solution because tho initial act .which led to the' altercation was tho .refusal to supply plaintiff, with liquor. This : refusal was justifiable, both on general, as well as on particular grounds. As to tho ■former, tho publican's license held by tlio liconsee. authorises him to. sell and dispose of liquor oil licensed premises (seo Section 30 ;of the Act of 1881, and form of publican's license , in tho first- schedule to that act). The license is not to supply at certaiii fixed prices., but to sell, and it is material to note that, whilst the obligation of inn-' keepers (which by interpretation includes the holders of publicans' and accommodation licenses) is to supply • lodging, meals, or accommodation to travellers, - yet nothing is said as to tho supply of! liquor (see Section, 129 Act of 1881). It is to be observed that this section proceeds 011 the assumption that an innkeeper is otherwise bound to supply lodging and meals. , . . " Now a sale' is,' before all things, a transaction in which tho vendor agrees' to sell and tho purchaser to buy.; Mutual agreomont between -vendor and purchaser is of the very, ossence of the .transaction. If the vendor will not agree -'to sell, tho purr chaser cannot offect a purchase. Conversely,' if tho purchaser will not'agree to' buy, the vendor cannot effect a sale. The publican's license being then an authority to effect sales, tho'■ liconsee can, at all times, readily resolve any doubt as to whether he ought or ought not to supply liquor to particular persons, by refusing so to do, and he is under no obligation to give reason.', and 1 sojule, notwithstanding, subsection 5 .of Section 22 of tho Act of 1895; that subsection was designed-as a defenco for licensees, if proceeded against nnder Section 155 of the principal Act. It was not intended-' to confer rights on either lodgers or travellers. Biit; again, I am forced to the conclusion that plaintiff, when ho entered the Masonic.Hotel on the night of February 19, was drunk. The licensee, tho defendant, and the Maori witness,. all say he. was drunk,' whilst tho witness Howell savs plain-t-id', was about half ' full. '."He. was," 110 said, "neither drunk nor sober." Both tho ■ Sergeant of Polico and: the doctor say plaintiff was not drunk,,biit had:been drinking. However, in tho meantime, half or three-quarters of an hour, hail elapsed, and plaintiff had met with this accident, .which would have a sobering effect. "Further, assuming plaintiff is not wilfully fabricating, then his evidence, compared with that of tho other witnesses, is such-a partial and distorted account of what , took place, that l. am-justified'in finding that he was too: drunk to give an intelligent account. Not only was ho .drunk, but he IjOt came violent and :quarrelsome, and used obscrne language, after tho licensee had refused to supply him with liquor. ' To have given plaintiff more liquor would have only added to tho mischief, and. moreover, would have rendered the licensee'liable to-pcnaltios. Tlio refusal to supply liquor was, therefore, justified not only 011 general grounds, but on grounds peculiar to the plaintiff hini--1 self. ! "As to tho second question, defendant was justified on general and particular grounds ! in attempting to eject plaintiff. Even assuming tho licensee was an innkeeper, and

tho Masonic Hotel a common inn on February 19, yet the plaintiff was not, on tho night under review, a traveller. ■ On the contrary, .Dannovirkiy where tlio Masonic' Hotel is situate, is, ami has been, for 2-5 years previously the home of tho plaintiff. Ho, therefore, had no right to demand to remain on the premises, and -'defendant as tho licensee's agent Was justified in ejecting him. ■ (See Lamond v. Richard, and Gordon Hotels, Ltd., L.lt. (1807), I Q.8.D., 541, and Sealev v. Tandy, L.R. (1902), 1 K. 1!., 290, "But, again, as has been previously found, plaintiff on February 19 .was drunk-, violent, and quarrelsome, and had been thrice requested, and thrico refused to leave, before defendant. attempted to interfere with him; therefore, f.ssuming ho had received an implied invitation from tho licensee or the defendant to como on ' tho premises, that license had been "determined, and, by refusing to leave, plaintiff bad become a trespasser, and liable to penalties. (See Sections .152 and 153 of tho Liconsing Act, 1881, and Section G of the Police Offences Act, 1884.) How plaintiff is' to lawfully found a right on an illegal stat-o of things entirely created by his' own wilful misdoing, it is difficult to sco. .... ■. "Did, then, defendant uso more force than was reasonably necessary, in plaintiff? I think not. Tho act of taking his stick from plaintiff was induced by tho latter's attempt to striko defendant, who was justified in repelling force by the sanio degreo. cf forco as that used by plaintiff, so long as that force did not degenerate into violence; whilst the act of defendant in putting his arms under plaintiff's armpits in order to induce, him to leavo was only a very necessary expedient to eject one whom no respectable publican would dream of allowing to, remain on his premises. "In my opinion,'defendant is, entitled to judgment. Judgment accordingly, with costs against the plaintiff." Mr. H. A. Banuord was for the plaintiff, and. Mr.' Lloyd 'for tho defendant.