FALL IN THEATRE

Poverty Bay Herald, Volume LXV, Issue 19699, 3 August 1938, Page 8

FALL IN THEATRE

INJURY TO WOMAN

CLAIM. AGAINST COMPANY

AUCKLAND CASK DECIDED

The Court of Appeal has delivered judgment in the case of John Fuller and Sons, Limited, theatre proprietors, versus Kathleen Amy Frazer, of Auckland, widow, which was heard in March.

The case, which involved crossappeals by both parties, arose as the result of the award of damages by a jury to respondent, who, when entering St. James' Theatre, Auckland, in April, 1936, slipped on the terazzo floor of the vestibule and suffered permanent injury to one knee. A claim was subsequently made against the appellant company in respect to this injury, and at the trial before Mr. Justice Fair and a jury last August the jury returned a verdict for respondent for £37 as special damages and £450 as general damages. Judgment was entered in her favour. Leave, however, was reserved to the company to apply for a new trial, or, alternatively, to move to set aside the verdict and judgment and to enter judgment for the company, or to enter judgment for nonsuit against the respondent.

The appellant company subsequently moved pursuant to this leave, and in August, 1937, Mr. Justice Fair, in an oral judgment, held that the company was not entitled to have judgment entered in its favour, neither should a new trial be ordered on the ground that the jury's verdict was against the weight of evidence.

An alternative question was also raised, that a new trial should be directed because respondent's counsel, in the course of his closing address to the jury at the trial, stated in effect that the company might have been negligent because it was insured, and that owners of buildings having terazzo floors could insure against risks. On this further question written judgment was delivered, His Honor holding that the company was entitled to have the judgment set aside, and a new trial of the action was ordered.

The appeal was brought by the company against the orders contained in the oral judgment. Respondent crossappeale*d from the order granting a new trial.

In its reserved judgment the Appeal Court was of the opinion that the trial judge was correct in ordering a new trial ,and dismissed the appeal of Mrs. Frazer from the order granting a new trial.

On the appeal of John Fuller and Sons, the court unanimously held that Mrs. Fraser had not made out at the trial a case sufficiently strong to go to a jury and that a nonsuit should have jeen entered. It directed such a nonsuit now to be entered, with costs in the Court of Appeal on the middle scale as from a distance.