SUPREME COURT.—CIVILSESSION.

Otago Witness, Issue 824, 13 September 1867, Page 8

SUPREME COURT.—C IVILSESSION.

His Honor, Mr Justice Chapman.) Monday, September 9th. The Court sat at ten o'clock ; and the trial of Common Jury Causes was commenced. " ' OtAIM FOB COMPENSATION FOR PERSONAL INJURY. ' Bates v. The Dunedin Steam Skipping Co. (Limited).— The plaintiff, Ed■ward 1 Bates, sought to recover LSOO, as combensatibn for injuries, and consequent'costs and losses, resulting from the ■ysriKuf neglect, <&c., of servants of the •defendants ; and the defendants, bringing Iso into Court, pleaded that they were not liable for any further amount. Mr J, A. J: Macgregor ar*d Ml- James Macassey appeared for the plaintiff ; and Mr James Smith was for 1 the defendants. Mr ".Macgregor stated the' case for the plaintiff ; the facts of which, as shown by the statement 1 and the plaintiff's evidence, ■were' these :— ln July, 1886, Bates was steward on board the William Miskin, ateam'er, which belongs to the defendants ; Bates's employer being Mr John Grey, "who J was the providore of the boat. On the 28th July, the steamer was loading alongside the new jetty, for Hokitika, two_ men being at a double-purchase crab winch, ' lifting bags of oats on board. While Bates was standing at the galley door, giving instructions to the cook, some bags' of ' oats had been lifted go aY to be over the hold. Then, instead 'of the bags being Blowly I6we^ed, by means of the brake with whfch the winch was fitted, one of the men pulled "off the handle at which he was working, and the other man let go. The. consequence was that the second handle was .flung off, and it Btruck Bates with, great violence. One part of the handle hit him on the chest, while the

other 'flapped home, upwards, and hit him partly on the jaw and partly on the tide 'of the- head. " The inimediate consev four of Bates's teeth were 1 knocked out, and three others were splintered and displaced, so as to be useless'; Ms jaw was broken and his upper lip "cut ;" his nose was smashed ; his cheat was injured! ; and the breakage of a small Teasel connected with the ear, had

resulted in permanent deafness on that «ideoi the' head. Bates was carried to the cabin, and was attended by Dr Reimer. Ait he had a wife and family, he desired to retain hia situation, and he engaged a map. to' d 6 his work, tfiinking that he. might recover during the voyage. At Hokitika, he was utterly disabled, and was attended first by Dr Davidson, and then' by Dr Young. Afterwards, not being able to attend to Ms duties as Bteward, he accepted the situation of cook. ' In February this year, he was compelled by his illness to leave the Miskin ; for seven weeks he was in bed ; and then, for several more weeks he was able only to move about a little, trying to regain strength. In July last, he engaged as cook on board the Geelong. Dr Young's claim was Lsss ; Mr Williams, chemist and druggist, claimed L 4 for medicines; and L2hadbeen paid to Dr Davidson. In the earlier part of the period after the accident, Bates, being unable to pay Dr. Young's charge, was arrested and imprisoned h«re. He wrote to the secretary

and the chairman of the directors of the

Company, appealing for aid ; but the result of a meeting of the Board was a resolution, that the Company were not liable, as Bates was not their servant at the thine of the accident, but was the servant of Mr John Grey. ' Afterwards, Bates sued the Company in the Resident Magistrate's Court, but he waß non-suited. As steward on board the William Miskin, Bates re- , <ceived L 9 a month, and 10 per cent, on ■ all sales, whether on board the vessel, or on things taken to Hokitika' and sold on ■Mr Grey's account. In all, the stewardship was worth between Ll4 and Lls a

month ; but as cook, onboard the Miskin, he received Lll a month only. He was -now cook on board the Geelong. — In

cross-examination by Mr Smith,' Bates gaid that when the Miskin arrived at Hokitika, on the first voyage after the accident, she got ashore, and remained there for a few days. He did not, during that time, get wet, for he remained in the

<jabin all the time. One of his legs became swollen after his return from that voyage, and his body also swelled ; but he was not told by Dr. Reimer that his

disease was dropsy. John Brook, general grocer, Maitland street, who was the shipper of the oats, and saw the accident, was briefly examined.

- Dr.' Reimer described the injuries sustained by the defendant. He considered that, -with the exception of the " ' injury to the ear, which was likely to be permanent. Bates had recovered from the effects of the accident, "when he resumed his duties on board the Miskin, on the Bth August last year. If Bates was exposed to cold, the injury "to the ear would be more .likely to be aggravated, — By Mr Smith : I did not

•attend-Bates after his- return fromrHoM*" ,tika, for anything arising out of the acci-. I dent. He was suffering from dropsy y and Ido not think that that disease was in any way connected "with v th'e"blowbn board i the Miskin. Bates • was on' this occasion seven weeks ' under my treat- 1 ment, all the time for' dropsy. 1 ' did riot make any charge against Bates, '.because he is a member of the Order'of Foresters, of which I am surgeon. Adam Cairnß, steward on board the Miskin., proved that during a voyage to Hokitika in January last, Bates was very ill, and was for a time delirious. • > • Mr Smith briefly submitted to the jury that, looking at Dr. Reimer 's evidence, the Company had, in paying L3O into Court, done all that they* could fairly be expected to do, to compensate the plaintiff for such injuries to him as had resulted from the negligence of, their , servants. Ll2 16s, was the total of the expenses | for medical attendance which the plaintiff had proved ; so that there was Ll7 4s left for the injuries sustained, and for the eleven days' losb of wages, &c. which was the limit of that chiss of loss resulting from the blow on board the Company's vessel. Mr Macassey replied for the plaintiff. The Judge directed the jury to reject so much of the plaintiff** claim as related !to the period of, and subsequent to,, the' second service on board the Miskin ; for Dr Reimer proved conclusively that . the I illness then was from dropsya-not in any sense consequent upon the accident. Remembering that limitation, the jury must estimate fairly to what the plaintiff. I was entitled on siccount of what he had . paid, what he had losty and what he had l suffered. The jury, after a short absence from Coiirt, found for the plaintiff— Damages, LSO, in addition to the L3O paid , into j. Court. Mr ' Macassey asked that His Honor would' certify that the case was a proper ! one to be tried in the Supreme Court ; ■ and His Honor certified accordingly. ', ' jLttEQBD BREACH OJ 1 COKTEACT AS" TO A PUBLIC HQUSB. . M'Gariglb «. Machjn. — Mr Smythies appeared for the plaintiff, John M'Garigle; and Mr Macassoy and Mr M'Gregor were for the defendant, Ephraim Machin.' The plaintiff claimed, to recover LSOO for breach of an agreement to deliver to him possession of the London Tavern, Walker street ; and also to have returned to him L2O, wliich he paid , as deposit money on signing the agreement. The declaration set out that the plaintiff tendered a month's rent in advance, in accordance with the terms of the agreement ; that he had always been ready and willing, &c. The defendant pleaded — A general denial ; a /special denial of the plaintiffs readiness and willingness ; and that, before valuation of the furniture, the plaintiff and the defendant signed an agreement that if the valuators could not agree, an arbitrator should be appointed, that there waa such a failure, and that the plaintiff had refused to appoint an arbitrator, so aa to allow the original contract to be carried out. ' By replication,- the plaintiff gave a general denial to this third plea. John M'Garigle : The defendant and myself signed this agreement : — July Ist, 1867. I, E. Machin, hereby agree to let to Mr John M'Garigle, my house, known' by and called the London Tavern, Bituate in Walker street, Dunedin, for the period of twelve months, at four pounds ten. shillings (£4 10s) per week, the first three months to be paid in advan.ee, monthly. Furniture, fixtures, fittings, and stock to, be taken at valuation. Poss, to be given on or before Saturday, 6th July, 1567, or forfeit deposit money paid this day; twenty pounds (£2O), by Mr M'Garigle. The agreement was tendered in evidence. Mr Macassey objected that the document was not properly stamped. Mr Smythieß admitted the fact. He would at once make payment to the officer of the Court, of the value of a proper stamp, and 20 per cent, on that value, as penalty ; and on the officer's receipt for such money, the document would be admissible. The Judge referred to the Stamp Act, 18G6, and said that the provision was, as stated. - • i Examination continued : The defendant and myself tock the value of the stock on the Friday, and it was agreed that the furniture and fittings should' be taken by valuators. I appointed Mr F. Bower, and Mr Campbell was appointed by the defendant. Mr Bower's valuation* was L 94 Is 6d. Afterwards, the defendant told me, at his own house, that he did not like parting with the place, and that he would rather give me LlO than carry out the agreement. I said that when I made, a bargain, I stuck to it. I, received Bower's valuation on the evening ' of Friday, the sth, and on the' morning of < the 6th, I went to the defendant's 1 hfyuse'. J asked him, '* Have you your -valuation? I have mine in my pocket" HeJM&i that

"fre""had' Hot received' his from Mr "Campbell, and we > went together to Campbell's hotel, £nd the defendant got the valuation from Campbell. In a private room, [■V opened my" valuation, on a table, and "said, • " Show me yours." He still held his, and taking up mine he looked at it,' 'and threw it from him, saying, "That's no yaluation at a 11. "% He afterwards said that his valuation was L 154 odd. I said, " Even mine is over- valued, and yours is ! far from an honest valuation, as you very ! well know." He got very angry. I said, | " It?s no use our arguing : let's leave the agreement to a referee." He got up and went away, saying that there would never be an agreement. I had offered to pay him the L 94. Is 6d, although I considered it an over-valuation ; but he said that he would abide by no valuation but his own. .Afterwards, in the defendant's presence, I spoke ip , Campbell of the excess of his present yaluation over what he made when Mr Crafts sold the house to the defendant. I offered to increase my amount a little, rather than have bother ; but the defendant would not " move a peg," and he got up and left me. In the course of the same day, I went to the London, and eaid, "Mr Machin, I'm come to take possession : here's the month's rent." He said, " I'll not give you the place without having the value of the fund? ture." I replied, "As soon as ever we can come to an agreement about the lurniture, I will pay you the money for it.". Mr Smythies, jun. was with me. The defendant walked out of the place where we were talking. From the Ist July to the 6th, I was at the London every day but one, from eight in the Blornihg until late in the evening, trying to : get him to carry out the agreement. From the defendant's representations, and from what I saw, I calculate that if I had got into the house then, it would have been worth LBOO a year to me. ' ■ B.y.Mr Macassey: I have twice stood in the dock in this Court. I was formerly 1 & farmer, and then a photographer. The agreement was made between the defendant ' -fend ixrygelf about noon on the Ist Jtoy. I did not know Mr Bower at all, but I wefrt to him on the recommendation of Mr Towers ; I know now that Bower is ' a cabinetmaker and furniture dealer. Bower told me that he .had made a fair valuation — not that he had valued as to sell again. He said that he was ready to pay -within 10 per cent, of his valuation. I have been a publican at Home aixd in this Colony. ' I was a farmer here for five years ; I did not make' it pay. It was about 12 months before this agreement that I last stood in the dock here. I was prepared to pay valuation for this stock, furniture^ Sec. , and to pay rent in advance, as per agreement, up to L2OO, or LIOO more than that, if the amount came to bo much. I had not L3OO lying in the Bank, but I had the money, nevertheless. The book handed to me was never shown to me by the defendant. On the Bth, Mr Smythies, my solicitor, wrote a letter, and he afterwards read to me a reply, .stating that the defendant was ready to give possession when the furniture had been settled for ; and naming Mr Barnett, auctioneer, as a referee, 1 wanted a referee appointed and I had named one, but I would not consent to Mr Barnett's acting. I said something to the effect, that that would be going from bad to worse. - Re-examined : The first charge made against me in this Court was of horse stealing : it was knocked to the ground — I was acquitted. The second charge was of assault : I was again acquitted. Harry W. Smythies was examined in support of the plaintiff's evidence as to what passed at the London, on the 6th July. Frederick Bower, cabinet maker and furniture dealer, said that in making his valuation, he acted independently on behalf of the plaintiff. Mr Campbell named Jhis value of nearly every line, as if wishing him (Bower) to be dictated to ; but he declined that, thinking that he knew a good deal better than Campbell, what the 'things were worth. His (Bower's) valuation of the furniture, &c, vas L 94 Is 6d; and he should be prepared, as a dealer, to buy at 20 per cent, below that. Samuel Crafts, brewer, said that in April last, he sold out of the London! Tavern to the defendant. Tha furniture and fixtures were to be taken at a valuation; lie appointed Mr Hooper, and the defendant appointed Mr Campbell ; they differed, and it was settled by Mr Barnett, and another, as arbitrators. The takings of the hotel while he had it were Lso ' to L6O a week — sometimes more ; and there would perhaps be Ll2 a week clear profit out of that. — By Mr Macassey : ; For the furniture and fixtures of the hotel, | and the furniture in four cottages, I got about Ll5O. William Hooper, estate agent, believed | that his valuation of the furniture and I fittings of the London, in April last, was j LBs'; it was agreed, when the arbitrators were" called in, that the valuations by himself and by Campbell should be torn up. - . , •, •" I Henry John Chapman produced a

memorandum of r th© amount settled by arbitration in April, showing, a 'total ot L 165. Ho understood that that was the value of all theTurniture,, &o- in the^iiotel and cottages ; \ but the valuation was by his partner, Mr Barnett, not by himself. - 'The 1 Plaintiff (re-called) : The defendant told me that the house was in such- 4 bad state when' he took it from Crafts, that he had not put any new furniture into it. I know that a valuable clock that w;as in. when Crafts sold, was taken out pefore the agreement to sell to me. — By tber Court (for Mr Macassey) : The defendant did not at Campbell's, or at any< other place, offer to toss up for the appointment of arbitrator. Mr Maccassey applied for a non-suit. The declaration treated time as of the essence of the contract ; but by an instrument subsequently signed by the parties* it was shown that there was an agreement by which the time might be prolonged. The Judge thought that the subsequent agreement wa3 rather against the defendant. It took the valuation out of the contract, and postponed it to a subsequent day, without mentioning time at aIL Mr Macassey addressed the jury for tic defendant. Ephraim Machin : I keep the London .Tavern, Walker street. The first agreement was mad© on a Monday ; and the plaintiff was to come to me on Tuesday, to appoint valuators. He did not' come until Wednesday ; then I named ,-Mr Daniels, auctioneer, and he named Mr S. Crafts. Although pressed by the plaintiff, Mr Crafts refused on the Thursday toact. On that evening, the plaintiff came with Mr Towers and Mr Bower j. and it "was agreed to start afc ten next morning. 1 said that as there had been a delay, I believed Mr Daniels would not be able to conieupjbutthatlwouldgetsomebodyelße. On Friday, Mr Daniels could not .come, and I got ' Mr Campbell. I never offered the plaintiff LlO to give up.tbV,agreement ; but I did say to him,iha,fcl,:wouHi not, for LlO, have had tho^ttoth^t that had resulted from Crafts's- failure to ceme on the Wednesday. When the valuators met, they suggested the drawing u^ of the agreement as to the appointment of an arbitrator if the valuators cou,l3*not agree. I aimply asked Canipbell*tb come and value for me ; I 'matfe iio J other arrangement with him. , tte had acted for me when I bought^ and' }l thought ife would be fair that he Blioulcl act when E sold. During most of the time that the valuators were at work, the plaintiff and myself wero engaged taking tha stock. We each made a list and put down our own values ; but there ■ was never an attempt to agree upon the value. My total of the value of the stock was L 127 4s lid. I was not ,told byCampbell at what he valued the furniture and fittings, and I- did not, see Bower in this matter, after he went avyay to dinner on the Friday evening. On theSaturday, the plaintiff came to me with a small slip of paper only ; Bower's valuation. I never saw until it was produced to-day. We went to Campbell. He put Ids book into an envelope and gave it 1 to me. X threw it down on the table before the plaintiff. I did hot see it; urrtil afterwards. Campbell's valuation ia } about L 154. It was on! the Friday that there was a proposal to toss up fpr,, arbitrator^ and the plaintiff agreed to it, • J^othing was said at Campbell'sy-on the Saturday,, about tossing up. I left the plaintiff and Campbell talking, and went to I 'Webb, Russell, and Co.'s for a few minutes. When I went back, the plaintiff was 'gone ; and I did not see him again until he came and demanded possession. X told him that I would not give him possession until he paid me for the furniture amfc stock. He said that I should have ,to stand the consequences ; and' I .said I knew it. It was not likely I was going to let him have my hotel, and to sell my stock, for a paltry LlB. • • James Campbell, of the Crown Hotel : I valued the furniture „ and fittings at L 152, and there were' a few things which. I did not bring forward. My valuation was a fair one. I have had 20 years* perience. I was first an auctioneer, . and afterwards a wholesale merchant, , Whpe we were valuing, the plaintiff said to Bower, "I hope you're makingi ike things cheap enough for me ;" and he replied, "I'm putting them doivn at a. price I would buy them at myself,' to aell again." I said, "Is that a way to value people's things at ? — to put them, down at the price you could take them into a broker's shop for sale again! no way of, making a valuation." , ' \ William Barnett, auctioneer, was very briefly examined. Mr Macassey, in addressing the jury, submitted that the evidence— and especially the correspondence— showed that the defendant had . always been desirous to carry out the agreement £■ white it must be clear that the • plaintiffs 'great object was to secure " an actib'ny'- immediately he found that the • defendant would not give up his hotel unt|l ( lie t had. i been paid for therurnitiar'e'and s^ckrini^

IMr'^myttnes cbtiteiided that the piairi"ftiff had shown himself "always anxious to carry-rout' 'the- contract: ' The defendant liad bound, himself to deliver possession on the Qth July ; and if payment for the furniture, &c., was' to be regarded as a condifciqn-prdcedent — which the plaintiff •wholly, denied — it was at the least the jduty 5 of tfie ' dofeiicLv.it to do everything *rithitf'his vv p t '6w'e"r r 'to render it possible that .pay m-etit .could be made. The defendant had not so ;tet»id : he had rather done and. avoided Ao'ng everything which prevent the agreement being carried out. The Judge said that the decision of the jury "would turn upon the point, whether, on the 6th July, the plaintiff was ready and willing to accept and take possession of the London Tavern. If there was an answ;er in the affirmative to the issue on that poitlt, the jury would have to con«ider>the amount of damages. The contract' \iwas for twelve months, and the damages to which the plaintiff would be•entitled were, an . amount about equal to tlie- net profits for that period, the evidence being that those profits were about- Ll2 a week. The contract between the parties provided that the furniture, &c., should be taken at a valuation. "When valuators were appointed, the par4iea signed a further agreement that if the valuators could not agree, an umpire should . be. appointed. But nok a word ■was said a3 to the way in which the wmpire was to be chosen. The easiest plan would have been fo.r the valuators, ■when they failed to agree, to have themselves appointed an umpire ; but as they did not do so, the appointment of an umpire' was left 'dependent upon something T ,]jke an impossibility, namely, the agreement of the parties as to who should h& umpire. There was a great difference., between the estimates of the value of the furniture and fittings, as made by the two valuators— 3L94 on one side, L 154 on ! the other. The stock was to be taken at invoice prices ; but the plaintiff and the defendant seemed to differ so much on the point, that while one stated the value at I«80, the other put it at L 127. There was altogether so much difference as to warxxai a. strong presumption that the parties would not agree upon an umpire ; and in its very vagueness, the agreement did not ■cast lipon either party the duty of getting an umpire/appointed. As to the demand for possession in this case, unless a man liad expressly agreed to hand over goods mpon ,credit r -he was not bound to do • bo ; and if there.- was no time for payment mentioned, the delivery of the goods and the payment^ of the money for them were to be -concurrent act 3. That the delivery of posspssion, and payment, should, be «x>ncurrent,on the 6th July, was almost 4at the time of tbe demand rendered an impossibility, because there had been no steps /taken, to' 'determine what money should be The defendant was justified in refusing to deliver possession upon the tender of LlB, as a month's rent in advance ; for to pay that sum was not all that the plaintiff was bound to do. Did he show, on the 6th July, that he ■was ready and willing to take possession of the 'stock, and the. furniture and fit tings, and to pay the value of them ? His Honor commented at some length upon the evidence.

The jury were out of Court about ten aninutes ; and on their return they answered in the negative the issue, whether the plaintiff was ready and wil3ing, &c. to take possession of the furniture, &c. Verdict for the defendant. The Court was then adjourned.

The • JSTew York Tribune of July 9th, contains a long article on processes, adopted extensively bythe Hudson River Peat Company, \ for preparing peat for fuel, which concludes thus :-r-" As regards the manufacture of Peat-fuel, in both the wet and the dry way, idie Company, has thus far proceeded asi follows : While one of the w e t-P reases and,appertaining engine have recently been put up and tested 1 , waiting' for the erection of the dry-houses, and one or two more wet-pregses in order to go into full operation, a capacious atone building,' destined to receive the immense and costly dry-pressure apparatus, has been completed some time since, and the engine and boilers that are to work the big press put in- their proper places. This drypressure apparatus the Emery Press .Company has just now completed, and will -shortly put it up. -Said apparatus is presumed to be the most powerful press ever, made, capable pf manufacturing ten ton* -of dry peat per hour,' ready for use, and'.rednced to-the'densiijy of mineral coal. ' This press, complete ;wath,punrpß, grindars, eleya-, tors, engine,- > &c, are estimated to weigh about 200,Q00 pounds, of which 20,000 pounds are steel, arid' from 70,000 to 80,000 pounds gun-iron. ''This preas, by means of its elevator, take 3 the -peat from 1 a pit in ■which it, is dumped ,frqm .the cars,,and'delivers it finished aij&' "ready 'for use in the store-houses' -without -any handling: The; dry, granulated or\pdwderlike .peat iß.«ub*<: Jectedf to a.preaaure which gives it greaterr density'; that "that produced by any other jiresg initiitf'worfd/' "< < 'J