COURT OF APPEAL

Otago Daily Times, Issue 23225, 24 June 1937, Page 7

COURT OF APPEAL

MOTOR COLLISION CASE A CLAIM FOR DAMAGES i\ . <Per United Press Association) WELLINGTON, June 23. The Court of Appeal heard a case arising from an unsuccessful attempt by Peter Percy Hurlstone, of Auckland, a gardener, to set aside the judgment entered in pursuance of the jury’s verdict in a motor collision case in favour of Harold Oscar Steadman, also-of Auckland, a collar maker. Hurlstone commenced an action in the Auckland Supreme Courtclaiming £552 Is 6d special damages and £ 2500 general damages suffered by him as the result of a collision between his motor cycle and the respondent’s motor car, allegedly caused by the negligence of the respondent’s agent, John Heffeman, Hurlstone’s injuries included a fractured right leg and ankle. The jury found that there had been contributory negligence on both sides, and judgment was entered for the respondent. Hurlstone applied for a new r trial on the ground that new evidence was available, but his application was refused. He then issued a writ against Steadman asking that the verdict and judgment be set aside, and alleging that Heffeman pushed the car back from the concrete Strip to the bitumen, which constituted the main issue.

At the first hearing Hurlstone alleged that HefTernan afterwards represented to two constables that the position of the car on the bitumen was the point of the impact, this action being fraudulent. The second ground alleged that Heffernan and the respondent’s wife, who were in the car at the time., committed perjury as to the position of the car. Mr Justice Callan, who heard the latter action, entered judgment for the respondent on the second ground, and nonsuited the appellant on the first. The appellant is now appealing from this decision. For the respondent, Mr I. J. Goldstine contended that the motor qar involved in the collision had hot been proved to belong to the respondent. and accordingly the driver (Heffernan) had not been shown to be his agent. It was submitted that an act which made the driver of a vehicle the statutory agent of the owner did not extend the common law principle of agency beyond the time or point at which an accident occurred which gave rise to an action for damages. With respect to the ground of perjury, "it was pointed out that there was no allegation in the appellant's pleadings that the driver or the passenger, Mrs Steadman, were agents of the. respondent when they gave evidence at the trial; nor had the relationship of principal and agent in this respect been proved. Judgment was reserved.