CARRIER’S LIABILITY

Greymouth Evening Star, 31 October 1933, Page 2

CARRIER’S LIABILITY

INTERESTING CIVIL CLAIM. Unusual circumstances were disclosed by the evidence given in a civil case heard by Mr AV. Meldrum, S.M., at the Magistrate’s Court, Greymouth, to-day, and the question of a earner s liability for goods destroyed while m his possession was raised. The P‘ a kb tiff, Robert Samuel Fleming (Mr M. B. James) claimed £6, as the value of a saddle, from Neil Mouatt (Mr F. A. Kitchingham). The case was defended. For the plaintiff, who is a gold miner prospecting 20 miles up the Punakaiki River, it was stated that, in June last he told defendant who is a carrier between Punakaiki and Greymouth, that he intended to send a pack-saddle to Greymouth to be repaired. The saddle was given by plaintiff’s son to O’Brien, an employee of Mouatt and O’Brien took it to McSherry, the saddler. Plaintiff gave no instructions about collecting the saddle, after it had been repaired, as he intended to call for it himself, and pay for the repairs. O’Brien called for the saddle, and told McSherry that he would deliver it. McSherry demurred, as he did not know Fleming and was a trifle worried about payment. He was reassured by O’Brien, and the latter took the saddle away. Fleming never received it, and it was understood that the saddle was burnt in the fire which destroyed defendant’s garage at Punakaiki, on June 24. Fleming saw Mouatt, who said it seemed hard that he should lose the saddle, and that he would do something for plaintiff. Later, Mouatt offered him an old saddle, but it was no use to him, and he did not accept it. Plaintiff said he considered that £6 was a reasonable value to place on the saddle. Mouatt never told plaintiff that it had been arranged that Fleming’s son, Emmett, should meet the lorry, and get the saddle from O’Brien. His son had never mentioned any such arrangement. John McSherry stated that O’Brien, whom he knew was an employee of

Mouatt, brought the saddle in for repairs, stating that Fleming had sent it in. Witness received no instructions as to when the saddle was to be sent out again. After the repairs were done, O’Brien called for the saddle. Witness asked about payment, and O’Brien said he thought that Fleming was a reliable man. Witness allowed O’Brien to take the saddle away. With the other portions of the harness witness would value the saddle at about £7. “MATTER OF PRINCIPLE.” Mr Kitchingham said that the amount involved was comparatively small, but a matter of principle was at stake. Mouatt realised his obligations as a common carrier, and had settled numerous claims. With regard to the present claim, there was a special arrangement. Many such arrangements might be made in future, and it was necessary for Mouatt to have his position defined. O’Brien was, at the time, driving the lorry for Mouatt, who was in Greymouth. The saddle was taken out in the lorry, from McSherry’s, by O'Brien, on the instructions of Emmett Fleming, who arranged to meet, the lorry at 8 p.in. on Saturday, June 24, at the junction of the roads, and take delivery of the saddle. O’Brien waited for 12 or 15 minutes, but Fleming did not arrive. Had the saddle been left on the roadside, it might have been stolen, so O’Brien took it in the lorry to the garage. Mr Kitchingham submitted that Mouatt’s liability as a carried ceased when Emmett Fleming failed lo meet the lorry, as arranged. Evidence on the lines of Mr Kitchingham’s statement was given by Joseph Redmond O’Brien, motor-driver, employed by defendant.

Mr James said that the case resolved itself into the question of whether defendant was liable as a warehouseman. He took it that the defence would admit that defendant was liable as a common carrier, except for an act of God or of the King’s enemies. A warehouseman was not liable, except in case of negligence. It. was contended that defendant, exceeded his duly, in taking the saddle lo the garage. as the usual practice was to leave goods on the roadside. It. was 1111 fortunate for the defendant, hut. the fact remained he was a common carrier, and was liable. Mr James quoted authorities dealing with the question of liability. Mr Kitchingham also quoted legal authorities. He pointed out that Emmett. Fleming had not. been called to give evidence, and O’Brien’s statement had not been contradicted. It was contended that defendant’s liability as a carrier ceased when Emmett Fleming did not carry out his arrangement, and that defendant was then in the position of a warehouseman. Negligence was the only ground on which plaintiff could succeed against defendant as a warehouseman, and there was no proof of negligence.

The S.M. 'said that the case turned on the question of whether defendant’s liability as a common carrier extended beyond the junction of the roads where it was stated Fleming was to meet O’Brien and take delivery of the saddle. It seemed to be clearly proved, that Emmett Fleming made the arrangement with O'Brien. It had been maintained by Mr James that liability extended until defendant had given notice to plaintiff as to the saddle being at the garage, but he (Mr Meldruin) could not follow that reasonins. It was impossible for O'Brien to give notice to Fleming from the garage, as there was no telephone and means of communication. Fleming failed to keep the appointment, anti O Brien did not know where he was. It would be absurd to expect O’Brien to go out of his way to find a means of sending a special messenger to Fleming. Was he to take the risk of leaving the saddle on the side of I lie 10. id, or to take it on to the garage? He decided to take it to the garage. In the opinion of the S.M., liability as a carrier ceased when O’Brien decided not to take the risk of dumping the saddle on the roadside, as Fleming had not kept his agreement to meet O’Brien. Defendant’s liability when the lire occurred was the liabiblit.v of a warehouseman, and as such he was liable only for negligence. That had not been proved, and the tire seemed to be purely accidental. Judgment, would be given for defendant.