COURT OF APPEAL

Dominion, Volume 13, Issue 228, 21 June 1920, Page 6

COURT OF APPEAL

RESERVED JUDGMENTS

A DUNEDIN ACTION

Three judgments were delivered in the Court of Appeal on Baturday. There were on. the bench the Chief, Justice (Sir Kobert Stout), Mr. Justice Edwards, and Mr Justice Chapman. The first case was that of Itobert D. Kenny and his wife Elizabeth v. the Dunedin Oity Corporation. Mrs.- Kenny hud sustained injuries while alighting from a tramcar which had just started after having been brought to a standstill. The jury awarded Mrs. Kenny £200 damages, and her husband £350 damages. 1 The caao was heard before the Chief Justice, and the question at issue was whether the juryhad properly answered tho question relat ing to alleged negligence on the part, of the conductor.

Mr. Justice Edwards pointed out that thero was no contributory negligence on the part of M*f>. Kenny, and the onus of proving such contributory negligence rested on the. defendant corporation. ]Je therefore considered that the plaintiffs were ontitled to the damages awarded by the jury, whioh, he considered, had sufficiently answored the issues put before it Judgment should bo entered for the plaintiff. - . Mr. Justice Edwards read the dissenting judgment of Mr, Justice Cooper, who held that thero should be a now trial, and that .the appeal of the corporation should be allowed on tho ground that tho jury had not mifficieutly answered the issue relating to plaintiff's suggested contributory negligent). Mr Justioe Chapman, in concurring with the. judgment of Mr. Justice Edwards, said that it was evident that the conductor was not in the position he should have been so as to obßerve Mrs. Kenny and the rost of tho passengers alighting. The judgment awarding damages to lis. Kenny and her husband was upheld At the hearing Mr. J, B. Oallan,'of Dunedln, and Mr. 8. P.. Hay, appeared for Mr. and Mrs, Kenny. Mr W. 0. Macgregor, K.C (with him Mr T. Neave) represented the Dunedin City Corporation. BLACK T. BUTLER, Judgment was next delivered upon the appeal brought by Greacen Joseph Black, of Gisbornc. . The respondent waa William Leonard Butler, also of Gisbornc The facts of the case were, briefly, that Butler brought an action for slander against Black • in the Supreme Court at Gisborne, claiming £1000 damages. The case was heard on September 20 -'y Mr. Justice Chapman and a- jury, and the jury awarded plaintiff £760. Black subsequently moved for a new trial on the groundß that the directions given to the jury were not correct; that there waa no evidence of malice; and that tho damages were excessive, Tho Court refused to grant a new trial, and the appeal was against tho decision on tho ground that it was erroneous in point of law. The appeal wos dismissed, with costs against respondent on the highest scale. At the hearing Mr. 0. P. Skerrett, a 0., and Mr. H. F. O'Leary appeared for the appellant, while Mr. L. T Burnard, oJ Gißborno, represented tho respondent.

CASE FOR PRIVY COUNCIL Another case was the suit of His Majesty the King v. A. Hatrlck and Co,, Ltd., wh'ch had been removed lrom the Supreme Court by . order of Hia Honour Mr Justice Edwards. 1 ' When the matter was argued, the Solici-tor-General (Sir John Salmond, K. 0.), appeared for the Crown. and_ Mr. A Gray, K.O. (with him Mr. D. S.. Smith) for Hatrick and Co. Tho question at issue was whother certain sorting charges mn.de by the Railway Department on goods it had handled for Hatrick and Co. at the port of Wanganui were legal Ihe department claimed that the charges were levied under the authority of Regulation 47 made under the Government Railways Act, 1908. The company, on the other hand, submitted that tho 'cgulatlou purporting to impose tho charges was ultra vires. The Chief Justico held that the Railway Department had no right to impose a sortage tax on goods not destined for carriage on the railways. Hn was of the opinion that judgment should bo for tho defendant company. Mr. Justico vJcoper agreed with tho Chief "'llr. 0 justice Edwards and Mr Justice Hordman decid-d In favour of tlio Crown, and judgment was accordingly given for 'the plaintiff. Mr. A. Gray applied for leave to appeal to the Privy Council, pointing out that many thousands of pounds wmch u was hoped to rccover wore involved in tho question. Leave was granted.