SUPREME COURT.

Otago Witness, Issue 2623, 22 June 1904, Page 27

SUPREME COURT.

CRIMINAL SITTING. Tuesday, June 14. "(Before. His Honor Mr Justice Denniston.) SHEEP-STEALING CHAHGES. Hearing of the charge against Donald EM'Kenzie of having on March 17, at Clinton, stolen two lambs the property of John Begg Ithomson, was resumed. Mr Sim and Mr Hanlon appeared for the feccused, whose plea was " Not guilty." Additional evidence for the prosecution was given by Detective Hrill and Constable Hunt, after which the Crown Prosecutor addressed the jury. Mr Sim said he would call no evidence, and addressed the jury at some length. He submitted that the recklessness of one of the Crown witnesses really threw discredit on the Tvhole of the Crown case, referring here to the identification of his ewes by the witness Divers, further, it was impossible to get over the initial difficulty that the Crown had not proved that these two lambs were Thomson's property. The evidence of indentification was not satisfactory, and it was impossible, he submitted, for the jury, looking at the whole case, to come to the conclusion that accused stole these lambs. His Honor occupied over an hour in summing Tip. The jury, he said, had first to be * satisfied -with the identification of these two lambs as Thomson's, and the evidence appeared very strong on the pednt. Fuither — and more important — it was for them to consider -whether accused had stolen them or not, the evidence in respect to, which had been placed before them. The jury retired at 3 p.m., and after a retirement for four hours returned, when the Foiemaii announced that they had been unable to agree, and there was no possibility of their agieaing. His Honor: I have power to detain you for A longer period, but I see no good in so doing. You will be discharged. I shall adjourn the case till 10.30 a.m. next Monday, and in the meantime, Mr Fraser, 3-ou will be able to consider the position. The Crown Prosecutor intimated that he proposed to have a re-inal. Tne court was then adjourned at 7.10 p.ni.

DIVORCE AND MATRIMONIAL CAUSES,

(Before His Honor Mr Justice Wil'.iams.) I'INLAY V. IUKLAY. Mr Joint ALacGrieiior. counsel for the. petitio_ej ( l -ua.: b -ie.:a May Fiuiay) int.uiatsd that in thl X sv t ict dl\crce r.a-ify he-aid yesterday, tha ccnobaiadve evidence requ'red-would have to ba taken on commission at Feilding, and he theiefoie asked that the case stand over for ,the present H.s Honor assented. KUI.LTTY OS 1 CARRIAGE. A petition by a wife for deciee of nullity of marriage in ths caso of C v. E . „ Mr John MacGregor, with him Mr J. R Kirk, of Nasebv. appeared for the petitioner, »nd there was no appearance of respondent. The case was taken iii csrnera, and after evidence a decree absolute was made, costs being allowed to the petitioner.

.IK BANCO. (Before his Honor Mr Justice Williams.) SMAILL V. ALEXANDER. A case on appeal from tha magistrate at Gore, argued on the 17th May by Mr Sim. for the appellant, and Mr Ncave for the respondent. His Honor now gave judgment as follows : — If an action by" a master against a man for injuring his servant will lie at all, I see no - reason why, if the master pays the doctor's till, lie should not be able to recover it from the wrongdoer as part of the damages. That ie can recover it is laid down in every text book that deals wnh tbe subject. It' was because of the loss of service, and not because the person injured was the son of the plain•trff, that the damages were given in Dixon v. Bell (1 Starkie, 287). The ordinary action \ for seduction is "founded on loss of service. The action can be brought by a parent, al- j t.liough the daughter was a married woman ! Separated from her husband (Harper v. Lufkin, I 7 B said. C, 387). It can be brought 'where the ! daughter is over 21, •where she is an adopted child only, and by a master who is no relation to the servant seduced (Fores v. Wilson ] Peake, 55). In none of these cases would there he any legal liability upon the master to supply medical attendance to the girl seduced, yet theTe can be no doubt that in every action for seduction the expenses of each attendance ere recoverable, and they are recoverable on the ground that the relotior. of master and servant existed between the plaintiff and the girl. The test whether such damages can be recovered is not whether the master is legally bound as between himself and his servant to find medical attendance for the servant, but whether the incurring by the master of Ihe liability is the Datura! and reasonable result of the defendant's act. That is, that it is such a consequence as in the ordinary course of things would flow ircm the act (Mayne on "Damages'). Now, I if a man grievously injures one who he knows j to be another man's servant, so as to render ' iim unable to render service, he does a wrong j •to the master as well as to the servant. That a doctor will be sent for by one of the parties ■wronged 'is a reasonable result of the act of the wrongdoer. The employer may not be legally bovmd to send for medical assistance, but it is quite natural and reasonable that he should do so. The employer has a. right to ,the services of the injured man, and in his i own interests, and apart from any motives of J 3iumanily, he may be expected to do what he" can to regain those services as soon as possible. If he takes reasonable steps to regain those services^ he can recover the cost from the j •wrongdoer, and to obtain medical attendance j in the case of serious injury is a reasonable j Btep. The master who sends for the doctor ] to attend to his servant cannot, in the absence of special contract, deduct from the amount , he pays the doctor from the servant's wages j (Sellen v. Norman, 4 C. and P., 80). If the master in the present case could not recover, it -would follow that the wrongdoer would not •be liable to anybody for the costs of medical attendance on the man he had injured. The injured man could not recover it, because he had never paid it, and had ne-<er become liable for it. In my opinion the plaintiff by counterclaim can recover the sums for medical attendance and medicine for which he has become responsible, and is entitled to judgment for £¥T 13s 6d, th/ 3 admitted amount. Judgment ■will be entered for that amount, in addition 'o the £3 given by the magistrate, and .£6 6s, -lie costs of this appeal, will be paid fry tlie respondent.