WHOSE MOTOR-CAR?

Evening Post, Volume CVIII, Issue 111, 6 November 1929, Page 13

WHOSE MOTOR-CAR?

HUTT ROAD COLLISION

UNUSUAL APPLICATION

Tlic question of whether a new car registered in the buyer's name and wliioli ran into and, injured a. motorcyclist on the Hutt road while being taken for delivery to the purchaser by one of the vendor's salesmen, who was at the time of the accident not driving, belonged to the buyer wh'en the accident occurred, was raised during tho hearing of 'the claim for damages made in tho Supremo Court yesterday against Uio Canadian Knight and. Whippet Motor Company. The motor-cyclist. Frederick George Everson, as mentioned, in "-Cho Post" yesterday, claims £1013 damages. . The case was heard befure Mr. Justice MacGregor and a jury. • Mr. O. C. Mazengurb appeared for the plaintiff, and Mr. ■!>'. Parry, with him. Mr. H. J. V. James, for the defendant company. CAR'S SPEED LIMITED. Motor Patrol Constable- Morrison said that he was in the vicinity of Ngahauranga on the afternoon of the accident, and he remembered Everson passing him.. Later he was informed that there had, been an accident, and on his way to the scene of the collision lie noticed a disabled car standing about 400 or 500 yards away from where the accident took place. In his opinion a ear travelling at a reasonable speed should be stopped in from two to three ear lengths. Campbell, a friend of the salesman, had no driver's licence with him. ' Brown, the salesman, said he was in charge of the car, and that he had left the Canadian Knight and Whippet Garage intending to deliver the car at Ngaio. On his way he had met Campbell. Brown said he left the garage about 1.30 p.m., and that at Campbell's request lie allowed Campbell to drive. Brown said there was an adjustment on the carburettor which limited the maximum spe^d of the tar. Witness could see no marks indicating that the accident took place on the bitumen portion of the road. Both. Brown and Campbell had had a drink or two, but he would not say they were drunk.'Campbell appeared to be quite capable, but Brown had had a fair amount of liquor, although, he was not drunk. When witness examined the motor-ear next morning- he found that its speed was governed down to 28 miles an hour. In his opinion, tho motorcycle must have fallen within a yard of where it was struck.

j In answer to Mr. Parry, witness said I that Campbell told him that the motorj cyclist was coining along the road at a terrific speccV and that when something got in his way Eversou steered for the wrong archway of the overhead bridge. Campbell admitted being the driver of the car at the time of the accident, and Brown said he had. no knowledge of thp collision until it happened. He agreed that if a ear had.a blow-out it might be- unsafe to apply the brakes immediately. A good deal depended on tho traffic of the road and tho speed tho car was travelling. • Replying to Mr. Mazengarb, Constable Morrison said that a car travelling at 25 miles an hour should be pulled up in three car lengths, or about 30ft, especially if the car was equipped with four-wheel brakes. MOTOR SALESMAN'S EVIDENCE. _ ,Roy James Brown, motor salesman formerly employed by the Canadian IVmght and Whippet Company, said lie had four or five drinks before lunch and he then met Campbell, whose father was a prospective buyer of a ear. He thought tho opportunity a good one to demonstrate the six-cylinder car he had aiid at Campbell's request he let Campbell take tho wheel on tho Hutt road which was quite a usual thing for salesmen to do. In the "demonstrators" he thought the company know he allowed prospective buyers to take the wheel Witness was talking <*ars to Campbell on the way along the Hutt road, and naturally he was not watching the road as closely as he would had he been driving. On coining up from the dip in the road under tho bridge ho noticed a motor-cyclist right on them. ' After the impact he could feel that ono of the tires had been punctured. Campbell was going to "stand" on tho brakes and witness .told Campbell to take it easily and pull over to tho left. Mr. Parry asked the witness if ho had any authority to demonstrate a car that had been sold to any other person.. Brown said he had no authority but he thought- there was no harm in doing it. As far as ho could sco Campbell was not responsible for the accident.

Evidence was given by Angus Ui-qu-hart, Civil servant, as to having bought a car from the Canadian Knight and Whippet Co.. and as to ;the arrangements that had been made for Brown to bring the car out to his house- on j^nd June and give him a run in.it. l-o his knowledge no arrangement had been made to leave the car at his ulaee after the drive. ;

The. question "of joining Mr. Urquhart as an extra defendant was considered an application for ,an order to this ettoet being made by ■ Mr.-.Mazeraarb. His Honour said it was a movolty tv urn to have such an application made halrway through a trial. Ha would reserve his decision on the point. Mr.; Parry submitted that thYrc was no evidence before the Court to <*o to a jury to show that a servant or agent of the defendant company was in charge of or had control of the car at the time of the accident, or that the defendant company was responsible in law for the actions or for any negligence there might have been on tho part of -either Brown or Campbell. Tho evidence, he submitted, went to show that Mr. Urquhart was tho owner of the car when the accident occurred. After hearing Mr. Mazengarb in reply, the Court was adjourned until this morning.

PLAINTIFF NON-SUITED.

When the Court resumed >this morning counsel were heard in further legal argument as to the ownership of the ear and in regard to other aspects of the case, after which his Honour gave a decision non-suiting the plaintiff. Dealing with the facts, his Honour said that the plaintiff sued the company on tho ground that the car was being driven by a servant or agent of the defendant company, and the ground of the action as stated by tho plaintiff was the alleged negligence of tho company, so tho.plaintiff had' to establish that tho man who was driving the car was a servant or agent of the company. At the conclusion of tho plaintiffs case yesterday Mr. Parry had moved for a non-suit on two main grounds/ firstly that the car before the accident took place had been sold and transferred by the company to Mr. TJrquhart, who upon registration.of tho car in his name became the legal owner of the car and must be-treated as t"he employer of the driver on-the day of the accident, and secondly on the ground that the person who actually was driving tho car at the time of the accident was not the servant or agent or in the employment of the company. In other words, that the accident was not caused by the negligence of a servant or agent of the [company. Dealing first with the second point raised by Mr. Parry, his Hononr said that the company had actually sold the ear to Mr. Urquhart about | 3 7th June, and took stops for registration to be effected on 21st June. Then on 22nd June Brown was sent to deliver the ear to Mr. Urquhart. . ,-How-

car was. not being driven by Brown, but by Campbell, a friend of his. .The main doctrine of law was quite clear. An agent could not delegate authority without instructions. Where there was personal confidence imposed or skill required there could be no delegation, however general the nature of the agent's duties, unless urgent necessity compelled the handing over of the responsibility to someone else. It was quite plain that no such urgent necessity had arisen in the present case. In tho result he thought that no case had been made out against the company. There was no real "evidence to go to tho jury to show that the driver was the agent or servant of the company. . . In view pf liis decision on this point he did not think it necessary to deal at length with the first point and the interesting and difficult questions that had been raised. Before the close of the case yesterday Mr. Mazengarb had applied to have Mr.- Urquhart joined as an. extra defendant, but he had come to the conclusion that ho should nut join Mr. Urquhart- for nioro than one reason. lie. did not think Mr. Urquhart's presence was.necessary to enable tho. Court to adjudicate or settle the questions involved. The addition nf Mr. Urquhart could not throw any possible light on the question of whether the company was liable; rather it would tend to obscure the issue. In tho second place it appeared to him that tho Court should not add a new defendant if it appeared that the defendant was not liable and that the plaintiff's object was to introduce a new defendant against whom it might be thought there was a better chance of establishing liability. Thirdly', were Mr. Urquhart added without his consent at this late stage of the trial he would have no opportunity of filing a statement of his defence and'placing his cass before tho jury.

In conclusion his Honour said that the plaintiff had not proved there w:is any case'to go to a jury, .lie. sincerely regretted the result for more than one reason, and especially in view of the injuries suffered by the plaintiff. The defendant was allowed costs with disbursements.