NEW TRIAL ORDERED

Dominion, Volume 27, Issue 146, 17 March 1934, Page 7

NEW TRIAL ORDERED

Appeal by Company “TRUE ISSUES NOT CLEAR” A new trial was ordered by Mr. Justice MacGregor in a judgment given in the Supreme Court yesterday on an appeal by the Direct Aerated Water Supply, Ltd., against a Magistrate’s Court decision awarding damages against the company to Francis Hugh McCutcheon, driver, Wellington, on behalf of his: infant son. The facts of the,case, said his Honour, were rather unUsual. On the day of the accident two men named Killick, father and son, were in apparent control of a delivery truck belonging to the company.' They were engaged in delivering the company’s bottled products, and while doing so one of them allowed plaintiff’s infant son to stand on the running-board. When the truck moved along the street the boy fell off and broke his leg. The magistrate found the company liable in damages to the boy and his father. It was of course clear that the person who actually committed the negligent act complained of was personally liable in damages. But it was equally clear that the company could not also be held liable unless it were established that it was in law responsible for the conduct of the negligent person. . His Honour considered that there may have been a genuine misunderstanding of the case at the hearing. “From the argument before me,” he said, “I am not satisfied that the true issues of fact and law involved in the action were placed before the magistrate in so clear a fashion as they might or should have been in an action of the kind, more especially regarding the respective legal relations of Killick and his son toward the company. I think accordingly that a new trial of the action should take place.” At the hearing Mr. T. F. Relling appeared for the company and Mr. 0. C. Mazengarb for McCutcheon and his infant son.