COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4883, 15 November 1876, Page 2

COURT OF APPEAL.

Tuesday, November 14. (Before their Honors the Chief Justice, Mr. Justice Johnston, and Mr. Justice Williams.) The Court of Appeal resumed at 11 o’clock yesterday morning in the case m’bridb v. brogden and others. Mr. Macassey appeared for the plaintiff,; and Messrs. Travers and Chapman for the defendants. His Honor.-Mr. Justice Johnston called Mr, Macassey’s attention to the case Allen v. New Gas Co., 45 D. J. Excheq., 668, a note of which appeared in the last number of the “Law Journal,” and Mr. Macassey replied that the case had not escaped his attention, but he proposed to deal with it later in the day. Mr. Macassey then proceeded, and said that he would first call the attention of the Court to two cases, illustrating the doctrine of common employment, Ashworth v. Stanwicks, 30 L.J., Q. 8., 183, and Millar v. Shaw, 30 L.J., Q. 8., 833. The Victorian case, which he had referred to on the previous day. Band of Hope Go. v. McKay, further illustrated the principle. If the Court followed the decision of the Court of Queen’s Bench in the Bandore Company’s case, he could not upon the Victorian case, but if the other view was taken, he would look upon it as an authority in his favor. In the case of Allen v. New Gas Company, referred to by his Honor Mr. Justice Johnston, he would like to call the attention of the Court to the fact that the manager had promised to get the gates repaired, from which injury was- expected, and he had fulfilled his promise by giving orders for their repair, which had relieved the defendants of negligence. In that case too the accident arose through a fellow workman, the evidence showing that tho gates were blown open, or opened by some cause which did not appear, and that it was the duty of a fellow servant to keep them shut, and also that when shut there was no danger to be apprehended. In addition, the statement of the Judges as to the position of the manager was merely an obiter dictum. The statement that the mischief arose from a fellow servant, and not from a vice-principal, clearly raised a distinction between servants. This was a negative pregnant, and raised an important principle. He would contend that under certain circumstances the principal was liable for the negligence, of the vice-principal. There was a great distinction between Allen’s case and that before the Court, in that Gwynneth had full powers and the manager of the gasworks was merely a sort of foreman or overseer. His Honor Mr. Justice Johnston called attention to the different nature ,of the two occupations. The manager of a railway works had far different duties to perform to those of. a gas manager.

Mr. Macassey was quite prepared to grant the proposition, but thought that Gwynneth’s commission was that of a vice-principal. The notice from the Public Works department t» Brogden’s Dunedin branch should have been circulated. It had been held that where a bank had several branches and a customer had a credit balance at one branch and a debit balance at another, the bank had a right to consolidate the balances, and dishonor a cheque presented if there were not funds sufficient to meet it. This decided a principle which he ventured to submit should be applied to the notice. His Honor Mr. Justice Johnston expressedan opinion that the notice was after all only the reiteration of a fact with which Brogdens should have been well acquainted. Mr. Macassey then proceeded to argue that the Band of Hope Company, Victorian case, was not in conflict with Allen’s case. He would also cite one of two cases which appeared to have been decided in opposition to the principle for which he was contending. In the cose Tunny v. M. By. Co., 2 L. Kep., C.P. 291, the verdict was for the defendants on the defence of common service; but the injury clearly arose from a fellow servant, and not from a person in Gwynneth’s position. His Honor Mr. Justice Johnston pointed out that Mr. Macassey was not entitled to assume that the cause of the accident was the bad system. It might fairly be urged against him that it arose from the neglect of Broad. Mr. Macassey then cited Morgan v. Yale of Neath ,Kailway Company, L. Kep. 12 B. 119, and Lovell v. Howell, L. Rep. 1 C. P. Div,. 161, in each of which cases verdicts were given for the defendants, the injury, however, being caused by fellow-workmen in each case, and in the latter case, the fellow-servant being a carpenter. Wi« Honor Mr. Justice Johnston thought there was a distinction to the rule of common employment between a carpenter and a porter on a railway. His Honor the Chief Justice said that the distinction had been applied in the case of a gamekeeper, Mr. Travers stated that the whole question of common service, and as extending the principle to the servants of sub-contractors, was most fully discussed in a recent number of the “ Law Times.” Mr. Macassey contended as a principle that although there was no negligence on the part of a principal, yet if it were shown tha t negligence had occurred on the part of a person in the position of vice-principal, it was amply sufficient to fix the principal with the liability, and that although the vice-principal was a perfectly proper person to appoint. Masters would be responsible for appointing any servant negligently when damage accrued by reason thereof, and lie thought consequently that the dicta of the Judges on the points mentioned were not meant to apply to a vice-principal, and he mentioned this more particularly because he thought their Honors were under the impression that the decision in Allen’s case was really that a defendant would only be liable for the negligent appointment of a vice-princi-pal. The case of Turner v. G. E. Railway Co., 33 L.J. N.S. 431, was one in which a plaintiff was injured through a fellow-servant, the accident occurring in the unloading of some coal trucks. Another aspect of the case was illustrated in Wemyss v. Matheson, 4 McQ., H. of Lds. 415, where the principle was laid down that a master of dangerous works, was bound to take especial care and provide proper safeguards against accidents. In“ Roscoe on Evidence,” p. 749, the whole law on this subject was collected. It might be contended in the present action that the risk of the plaintiff was only the ordinary risk of a laborer on a railway line, and such being the case, he was not entitled to damages. The remarks of Baron Bramwell, in Brittain v. G. W. Ey. Co., L. Rep. 7, Excheq. 137, and of Mr. Justice Willes, in Holmes v. Worthington, 2 F.F., ,533, fully answered the contention, and he would remark that the evidence of railway contractors only was offered as to the danger of running the trucks in front of the p engine* and the plaintiff said that he thought there was no danger. His Honor the Chief Justice asked Mr. Travers if. he contended that there was contributory negligence on the part of the plaintiff,, to which Mr. Travers replied in the negative. In answer to a question from his Honor the Chief Justice, Mr. Macassey explained that the master had a duty to perform in the case of dangerous employment, although,. if the servant had a knowledge of,the risk, the master would not be liable. Mr. Macassey then proceeded to argue that Gwynneth’s knowledge was Brogden’s knowledge, but that in the case of .dangerous employments the question of personal Imowledge had not to be brought home to the defendants. In support of this point of view, he would quote Murphy v. Phillips, 24 Weekly Rep. Excheq. 647, in which case the master had been made answerable for negligence owing to a chain badly welded, and so badly worn as to be unfit for use, injuring a servant. In Tarry y. Ashton, 45 L.J., Q. 8., 260, Justice Quaiu held the defendant liable for the falling of a lamp, which had just been inspected; and Justice Blackburn concurred. As showing that the case should not be dissected by apportioning the cause of the accident between Gwynneth and Broad, he would quote Jackson v. Met. Ky. Co., L. Rep., 10 O. P., 49, which sustained the principle of looking at the case as a whole. The Court should consider that the defendants had adopted a system of sendjn „ ou t their men, which had been universally condemned, and there was the additional fact that a previous accident had occurred. A question arose as to whether this fact would be evidence, the Hon. Hr. Justice Johnston expressing an opinion that a similar result having occurred under similar conditions was certainly evidence. Mr. Macassey commented on the fact that there had been an inquest and .the verdict of a coroner’s jury, which was certainly sufficient to bring the danger of the practice under the consideration of the Oamaru Branch. In addition the truck was not so protected as to. remove obstacles from the line, and the driving the cattle across the siding on the day of the show was certainly a fact which should have paused some trouble to be taken to see if the line was clear. The Hon. Mr. Justice Williams pointed out that Gwynneth was in Dunedin at the time, and could have no notice of this fact. Mr. Macassey then argued that considering the causa causans and the causa sine qua non, the jury were undoubtedly justified in their verdict He would now refer to the last portion of the rule, and probably some criticism would be offered on the finding of theiury on issue 4. He would like to mention that Mr. Justice Williams had instructed the jury that unless they held Gwynneth to be a vice-principal, the defendants were not liable, consequently the word “servant” in the finding must 'bear a different construction to the common one. The word “passengers, in the answer to another issue, must be used as a convertible term with people. He would make a observation as to the word “ servants ■ in the finding on issue 4. He would submit that there was every element in this case to bring it within the law of negligence, and make the defendants liable. He had occupied the Court for some time, but it was a case of great importance, and he hoped that this would be taken into consideration by their Honors, and they would excuse him. Mr. Travers then addressed the Court in support of the rule, and said that he did not propose to remark on the second count unless invited to do so, as, in his opinion, the whole action turned upon the question of common service included in the first count. Looking at the rules of the Court, an action meant one cause of action only. It was true there could be a joinder of causes of action, but this was merely to save expense. He contended that the rules absolutely prohibited the English theory of counts. His Honor Mr. Justice Johnston pointed out that the facts might be put in one way for the purpose of applying a particular rule of law, or the same facts might be marshalled m a different way, with the view of applying a different rule of law. His Honor Mr. Justice Williams asked if Mr Travers contended that the New Zealand nractice was the same* as that under the new judicature Aot in England, Mr. Travers replyfcg in the affirmative,

His Honor the Chief Justice pointed out that separation of counts was conducive to scientific pleading ; but where there wore unscientific people, whether on the Bench or otherwise, it might be better to merge all the facts together. His Honor Mr. Justice Williams said that if Mr. Travers’ contention was right, they ought to be able to demur to part of the declaration, which was not now the case. Mr. Travers contended that the causes of action were inconsistent, and he only wanted to know did their Honors consider it necessary for him to offer any observations on the second count, by which the plaintiff sued as a stranger, being a passenger on the defendants’ line. The first point he would call attention to was the knowledge of the defendants as to the state of the line and truck, and the requiring of the plaintiff to travel who had ne such knowledge. He would admit that the plaintiff was ordered by Macintosh to get in the truck. As to the encumbrances ou the line, the charge should be as against the plaintiffs, they knowing it was encumbered with rubbish, &c. Then there was a charge of negligence in the driving of the engine and truck. There were two elements in the first count of the declaration ; first the active interference of the defendants by requiring the plaintiff to travel; and secondly, their negligence in employing unskilful persons. The second count was for ordinary negligence, the plaintiff being a lawful passenger. And, as illustrating what must be proved to satisfy the second count, he would mention the supposititious case of a coachman picking a stranger up on the road in his master’s carriage, and an accident happening through the coachman’s negligence. To support an action against the master, it must be shown that the servant had his authority, and so in the present action it must be shown that Macintosh had authority from Brogdens. As to the rule of law on negligence he would quote Ormond v. Holland and Another, E. B. and E. p. 102, and it was there laid down that in the case of master and servant a personal negligence must be shown on the part of the master, which could however be brought home on two grounds (1) a personal interference, and (2) a negligent engagement of incompetent servants, by whose incompetence the injury occurred. His friend had contended that this personal interference of the defendants’ might be by their alter ego, but if this contention was true the vice-principal must do the act which, if done by the principal, would have rendered him liable. The Chief Justice pointed out that the plea put in issue the whole of the tacts in the declaration, but the issue often abandoned several of those matters, where issues had been raised by the plea. Mr. Travers then said that issue No 8 was capable of a very wide construction. His Honor the Chief Justice said that he would not say that the question of knowledge was abandoned, for it might even be deemed to be included in issue 4.

Mr. Travers submitted that in any case active personal interference by the defendants, or, if the Court held an action to lie in such a case, by the vice-principal, was required. The answer to issue 5a was virtually no finding at all, and as this was the case, a judgment could not be founded upon it. His Honor the Chief Justice explained that if Gwynneth was a servant there was nothing to show that he was incompetent, and there was no evidence of the incompetency of Broad. ■ Mr. Justice Johnston said that it was necessary to show that Gwynneth, if he had been principal, would have been liable. Was there evidence for a verdict against him ? Mr, Travers then proceeded, and said that, looking at the issues by themselves, they were quite consistent, wtth the omission of the first three paragraphs in the declaration. His Honor the Chief Justice asked was it necessary for the petitioner to state in his declaration at all that he was a servant? Mr. Travers said that the evidence was very clear as to the common service, and was not this a fatal variance with the statements in the declaration? His Honor the Chief Justice explained that it did not appear on the issues that there was a common service, and how did the defendants then avail themselves of this defence ! Mr. Travers contended that there was no cause of action shown on either count. The defendants, under the general denial, were allowed to give any evidence ou all the averments. The plaintiff’s case was the liability of the defendants as employers. He would now come to the doctrine of vice-principals, and would quote from the evidence of Mr. Hbert, taken before a select committee of the House of Commons. The case of Wilson v. Merry also governed the principle. The question of a person being a vice-principal was for the Court, and not forthe jury. The origin of the law as to common service was an American case decided in 1842, and the principle had been adopted by the English Courts afterwards. His contention was that Wilson v. Merry contained the most modem exposition of the law on the subject. His Honor Mr. Justice Williams pointed out that this was a Scotch appeal, and the practice might be different in Scotland as to what was for the Judge and what for the jury. Mr. Travers said that a passage in the judgment was very clear, viz., that part of the direction of the Judge should be the status of the party. His Honor the Chief Justice said that in Allen’s case the* question was left to the jury.

Mr. Travers called attention to Lord Chelmsford’s remarks, pages 337 and 338 of the judgment, which bore very clearly on the present case. Henderson was the agent in the colony, and Gwynneth in charge of one work and Smith on another. Undoubtedly Gwynneth was merely a fellow-servant, although of superior authority. “Smith onMasterandServant” dealt with the question, but there was no decided case laying down a hard-and-fast rule, and in fact there was a doubt as to the position ofamasterof a ship even. There was nothing in the evidence to take Gwynneth out of the category of a servant, his acts being purely administrative. To . be a vice-principal he must be an unfettered agent, his power even extending to renouncing the whole contract forthe work, if necessary. All that was actually entrusted to him was to do all necessary things for the completion of the works. It was possible that Henderson might be in the position of a vice-principal; but his friend contended that on the second count the defendants had not put themselves in the position to avail themselves ’ of the defence of common service. He would submit to the Court that the plaintiff’s evidence was entirely inconsistent with the maintenance of an action by him as a passenger. There was no warranty in the case, and unless negligence was absolutely proved, the plaintiff would not be entitled to recover. The evidence in chief of Blair, McArthur, and Mcßride, and the crossexamination of Conyers, dealt with the question of negligence. He would also contend that under the general denial the defendants could avail themselves of contributory negligence as a defence. Although the practice of pushing trucks in front of the engine was not wise, yet if there had been no metal on the line the accident would not have occurred. If the truck had gone off the line at a curve, it would have been a different matter. The fact that it was an outside matter which was the cause of the accident caused the question to assume a different complexion. It was necessary that trucks should be pushed on a single line, but it was not necessary that people should ride on them.' In the case of Latch v. Rumner Railway Co., 27 L.J., Exchequer 165, it was decided that it was evidence of negligence on the part of a railway company that a train runs off the line, but this could be rebutted by proof that the cause of the accident was the_ act of a stranger. There was no doubt of the immediate cause of the accident In the present case. The evidence of Casey showed that it was not speed, but the stones which were the real cause. His Honor the Chief Justice said that the ordinary test for negligence, was, would the accident have occurred had it - not been for some act or omission of the defendants. Mr. Travers submitted that the driving of a truck in front-of the engine was not negligence. Even supposing that a third person had been injured who was not riding on the truck, he thought the defendants would not be

liable, as it was impossible to construct a railway line without doing so. Another question arose, viz., was there contributory negligence. The plaintiff, it is true, said that he did_ not know there Was any danger; yet, by riding in a truck in front of the engine, he contributed to the accident. The plaintiff was simply travelling for his own convenience. His Honor the Chief Justice pointed out that if Mr. Travers’ contention was right, and the plaintiff was simply travelling for his own convenience, then the plaintiff was probably not in the position of a servant. Mr. Travers said that the plaintiff was paid by time, and it was a part of his contract to travel to his work. His Honor Mr. Justice Williams pointed out that the question of master and servant would not then arise. Mr. Travers said that then it must be shown that the persons who gave the plaintiff a ride in the truck had power to do so. His Honor Mr. Justice Williams referred to Lovell v. Howard, before cited, as illustrating the fact that the person injured was not bound to go to the place where he was injured, but it was sufficient if it was his habit to do so. It had not been shown that Mclntosh, in ordering the plaintiff into the truck, was acting within the scope of his authority. Mr. Travers submitted that the third issue was wrongly found, if the plaintiff was a casual passenger. He would leave the matter in the 1 hands of the Court. Mr. Chapman, in reply to the Chief Justice, said that he did not desire to address the Court. His Honor the Chief Justice intimated that the Court would reserve judgment. The Court then adjourned until 11 o’clock next morning.