COURT OF APPEAL.

New Zealand Times, Volume XXVIII, Issue 5948, 11 July 1906, Page 3

COURT OF APPEAL.

DISTRIBUTION OF A NEWS I’APER’S PROFITS.

Their Honors tho Chief Justice and Justices Edwards, Cooper, ami Chapman continued tbo homing of argnmont in the case of Uawli-haw ami another v. tbo Chri-tclmrcb -Press” Company, Ltd., in which Mr Roll and Mr Stringer appeared for the plaintiffs and Mr Hosking and Mr Acland for the defendants. -Mr Hosking concluded his address to tho Court, and was) followed by Mr Acland. Argument was concluded at about 3 o’clock, when the Court reserved .judgment. PEA-RIFLE ACCIDENT.

Their Honors tho Chief Justice and Justices Cooper and Chapman, sitting as tbo Court of Appeal yesterday afternoon, commenced tho hearing oi argument in tho case of Timothy Koncalley v. Kawana Kapaka, which was an appeal against tho finding of tho Court presided over by Mr Justice Edwards at Auckland in December of last year. Mr Skerrctt, with him Mr Karl, appeared for tho appellant, Timothy Koncalley, and Mr Reed appeared for the* reft'pondcnt, Kawana Kapaka. Tho facts of tho case wore that Kawana Kapaka,the plaintiff in the Court below, was, in April, 1903, a flaxmill hand and contractor at To Puko, in the provincial district of Auckland, and that tiic defendant was an hotelkeeper, carrying on business at tho same place. On tho 18th of that month tho plaintiff was participating in a football match, when ho was struck by a pearlflo bullet, which, it was found, was fired by a ten-year-old son of the defendant, named Donald or “sonnio” Koncalloy. Tho bullet, it appeared from the medical evidence, entered the upper part of tho right side of tho client. Tho wound healed in about a fortnight, but later on tho patient developed a plouristio effusion, and had to bo scut to tho Auckland Hospital, where lie remained under treatment for about twelve- months, and underwont several operations. It was claimed in tho Lower Court that tbo plaintiff's health find been permanently and irreparably injured. His Honor Mr Justice Edwards had refused tho nonsuit applied for, and the jury, having nsfiepsed the damages at £SOO, judgment for plaintiff for that amount, with costs according to scale, was entered.

Tho appeal was now brought on the ground that his Honor Mr Justice Edwards should havo granted a nonsuit at the bearing. Mr Skerrott said the question before tbo Court raised an extremely interesting point in regard to tho law of negligence. Ho proposed to submit that upon investigation it would be found that the material question involved in tho action was not adequately referred to the jury by any issno submitted to them, and was not adequately dealt with by his Honor, and that his Honor’s judgment would, upon examination, bo found to go far beyond any decided case.

Tho Chi of Justice: You ask for a nonsuit, and oppose tbo motion for judgment on tho findings? Mr Skerrott replied that such was tbo appellant’s contention. It would bo contended that tho act of negligence relied upon—that of not guarding an unloaded pea-rifle—was not an act of negligence, for an unloaded rifle wad incapable of inflicting tho wound complained of by tho plaintiff. Tho Chief Justice: Well, where did they get the ammunition? Mr Skerrott said it was obtained from a third and outside party. It rvas admitted and proved that possession of tho rifle was obtained by a young boy, son of tho appellant, without his father’s knowledge or sanction, and by this boy eluding tho efforts of his father to secrete the gun: but it wad also admitted that this act of tho boy’s was committed at tho instance and incitement of a strange companion, who bought tho cartridges, and the gun was in consequence used by tho appellant’s son. The questions that would bo submitted to the Court on behalf of tho appellant were:—(l) “Whether the father, having, in fact, as was admitted, kept the cartridges from tho boy, was guilty of negligence in permitting tho boy to get possession of an unloaded gun?” In the circumstances, that act was against the father’s prohibition; it was taken surreptitiously and secretly, and by the Incitement of a strange companion. (2) “Whether, if ho was guilty of any negligence, ho was bound to have, or ought reasonably to have, anticipated that tho gun would have been removed in tho circumstances, and that a stranger would havo bought cartridges so as to render tho gun an effective and deadly weapon?" Air Skerrott submitted that these questions, which were of a material character, had never been submitted to tho jury. Mr Skerrott’s argument had not been concluded when the Court adjourned for the day.