VAN DRIVER'S STATUS

Evening Post, Volume CXVII, Issue 64, 16 March 1934, Page 9

VAN DRIVER'S STATUS

CONTRACTOR OR SERVANT? ■ _. ": [ ■'■' ';■ tu.. NEW TRIAL ORDERED :'>

Reserved judgment was delivered by Mr. Justice MacGregor in the Suprome" Court, today in a .case in ■which-Francis Hugh McCuteheon^-driver, of 'Coiomandel Street,, .Wellingtohv ; and,- lan Alexander McCutchaon^an infant,' sued' in tho Magistrate's®. Court1 the .Direct Aerated .Water Supply,'' Ltd., cordial manufacturers, Miramar, for ;£139 3s 6d damages caused by an employee of the, company dr.iving a va!n so negligently as to allow the boy lan Alexander McCutchco'n to fall from the. cart arid sustain a fractured thigh. The Magistrate gave judgment for the plaintiffs for £79 3s 6d damages. The' company appealed from that .decision as being erroneous-in law and inl'fact!.-

Mr. Justice MacGrcgor said that the: facts .of the case were rather unusual;' On the day of" the .accident two men named Killick (father and son) were in apparent control of a delivery1 truck belonging to the'company. They were engaged in delivering the company's bottled products from house to house. While so" engaged,, one of them allowed the infant plaintiff (aged 5J years)" to stand on the running ■ board "of the truck. The truck moved 'ajortg- the street, and the boy fell 'off and/ broke' his leg. That was , the act of negligence complained of by-tlie plaintiffs. The Magistrate had'found the company liable in damages. •

His Honour said that from the argument before him he was not satisfied that the true issues of fact and Jaw 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 towards tho defendant company in the matter: In that way an •■■ injustice might possibly have in the result been done to the.,defendant company. He thought accordingly that a new trial of the action should take plaeo in terms of section 168 (1) of the Magistrates' Courts Act, 1928, :■■ ! .-■ APPEAL ALLOWED. , ' As.there was to-be a.new trial of the action, his Honour said that'of course, in accordance with custom, hel would refrain from commenting ■ on the evidence or expressing any decided view on the merits of tho case. At the same time he thought that . the plaintiff should have an opportunity of amending his statement of claim to make it accord with tho facts, as proved, and also (if he thought fit) of. adding Killick, senior, as a defendant in the action in order that the precise legal position of each of the Killicks in- relation to the company might be further elucidated and ascertained to the satisfaction of trio Magistrate. ; The appeal wfiuld accordingly bo | allowed, but in the circumstances without costs, and a. new trial ordered to take place in the Magistrate's Court on the t,erms stated. At tho hearing Mr. T. P. Rolling (Palmerston North) appeared for tho appellant company, ' and "Mr, " O. C. Mazengarb for the respondents.