MOTORIST WINS CASE

New Zealand Herald, Volume LXXI, Issue 21983, 14 December 1934, Page 17

MOTORIST WINS CASE

CLASSIFICATION OF CAE

jOWNER NOT A " TRAVELLER "

JUDGE UPHOLDS APPEAL

[FROM OUR OWN CORRESPONDENT]

HAMILTON. Thursday

The opinion that Norman Uriel Watgon, now a garage proprietor of Te Aroha, was not in June, 1933, a commercial traveller within the meaning of Section 17 of the Motor Vehicles Insurance (Third Party Risk) Act, 1928, was expressed by Mr. Justice jjerdman in a reserved decision given in ' t j ie Hamilton Supreme Court to-day. The case was 4m appeal from the decision of Mr. F. W. P.latts, formerly a stipendiary magistrate, given at Te Aroha. An information had been laid against appellant charging him that on June 24, 1933, at Auckland, being the owner of a motor-car classified as. "Class 4, private car," under the Act mentioned, lie used the vehicle for business purposes and failed to register the car as such ,under Class 5 and pay the premium payable in respect of such class. The magistrate convicted Watjon and fined him £3 and costs, £3 32s 10d Question for Determination His Honor said the question for determination was whether appellant had registered his ear in the right class. The question was particularly important, because appellant's car was involved in an accident and because under sub-section 2 of,Section 17 of the Act mentioned an insurance company was entitled to recover moneys paid under * policy issued by it if a premium less than the prescribed premium had been paid by the owner. Dealing with the facts, His Honor said the magistrate had found that the appellant in his appiication had described himself as a gentleman and that he used his car for private and business purposes. Appellant registered his car on May 31, 1933, while he was in the employ of a benzine company. The accident occurred on June 24, 1933, while appellant was still in the employ of the company. The magistrate had fouiad that the appellant's duty was to travel about the country in order, to discover suitable persons or frins' to act as agents for the sale of benzine. If such persons or- firms were approved, the company supplied them with benzine at wholesale prices. Thd appellant did not actually sell or take orders for benzine. The magistrate had found that when the accident happened appellant was travelling in his car for commercial purposes. His Honor's Decision*

His Honor said a motor-car was a private vehicle-, within class 4 if used in person by the owner for the purpose of making a personal .call in re-, lation to his profession, business, or calling, provided that such business or calling was not that of a commercial traveSer, insurance agent, or other occupations mentioned. The duties of'appellant were not to soil or take orders for benzine. He had no goods to sell and had no authority to take orders. His Honor quoted dictionaries in giving the definition of "commercial traveller." He said he did not think appellant was a commercial traveller or that ah offence had been proved against him. He could seeno justification for extending the language of a which was penal so as to bring within its, operation the case of the present appellant. If the framers of the regulation intended to make a parson who did what the appellant did liable to police prosecution, concluded His Honor, they could have done so by using language which was not open to misconstruction. The appeal was allowed. Mr. Gilchrist appeared for appellant, and Mr. Gillies for the respondent, Constable A. E. Hinton. of To Aroha.