CLAIM FAILS

Southland Times, Issue 22096, 17 August 1933, Page 8

CLAIM FAILS

ALLEGED ASSAULT VERDICT IN FAVOUR OF DEFENDANT LENGTHY EVIDENCE An alleged assault formed the basis of a civil claim brought before his Honotir Mr Justice Kennedy and a jury in the Supreme Court yesterday by Arthur Lionel Austin, of Invercargill, land agent, who sought to recover from Hugh Ritchie, of Invercargill, accountant, the sum of £lOl2 16/- as general and special damages. The hearing occupied the attention of the Court throughout the day, and after a brief retirement the jury returned a verdict in favour of the defendant. In his statement of claim plaintiff set out that on December 1, 1932, at the office of the Southland Building Society, he was assaulted by the defendant who punched him about the head and face. In consequence plaintiff suffered a fractured jaw-bone, laceration and bruising of the face and mouth and also a breakage of two' teeth from his upper denture. As a result of the injuries which caused him much pain, suffering and inconvenience, he was unfit for some months to give proper attention to his business. In addition his face had been, and still was, partially paralysed. Plaintiff’s claim of £lOl2 16/- was made up as follows: General damages, £1000; special damages, Mr A C Hanlon, K.C., of Dunedin, with Mr B. W. Hewat, appeared for the plaintiff, while Mr H. J. Macalister represented the defendant. Three jurors were challenged by Mr Macalister and one by counsel for the plaintiff. , The following jury was empanelled:— Martin Henry Scully (foreman), James George Gibbs, Keith Michael Ingles, Newton Julius Jensen, Charles Bawlker John Thomas Blampied, Alexander Sloan Dempster, John Embrough Lainchbury, William Leslie Young, Albert Ferkin Wootton, Frederick Double, Frederick William Roe. In opening his case, Mr Hewat said that the assault complained of occurred in the private room of the defendant at the Southland Building Society. Counsel proceeded to outline at length the business relations between the plaintiff and Ritchie and the conversations which, he said, were antecedent to the blows being struck. Plaintiff’s Evidence. The plaintiff, the first witness, said he was 53 years of age. For the last 18 to 20 years he had been carrying out transactions with the Building Society, and in November, 193.., he was in touch with the office regarding the affairs of a Mrs Murray who had bought a property through him in 1921 The society held the first mortgage Mr J. L. McG. Watson the second, and ’he, himself, the third She was to pay 17/6 a week, out of which he had to pay the society the four-weekly subscriptions, the interest on the second mortgage had to be paid and the nalance went to his interest. The payments were insufficient, so he had been obliged to find certain moneys himself, namely, £7O over the last five years. In November, 1932, Ritchie rang witness up staling that an error had been discovered in the number of shares allotted to Mrs Murray and that she had been charged on twelve and a-haL shares instead of on ten and a-hali. He also said that the society would be refunding some £4O odd to Mrs Murray. Witness replied that as he had paid the excess amounts the refund should come to him (Austin). . Consulting his ledger, he told Ritchie tnat the account had increased from £127 in 1927 to £204 or £205 in 193? Ritchie replied that Mrs Murray was with him at the office and that he intended paying her the cheque. Witness pleaded with Ritchie not to pay off until he (Austin) could come down with the ledger and let him see with his own eyes the position of Mrs Murray’s account. The pleading was useless— Ritchie said he was going to pay over. Witness told Ritchie he regarded the payment as outrageous, and he hung up the receiver. later he wrote a letter to the directors of the society. About 12.30 p.m. on December 3 he took the ledger down to the society. He saw Mr Hay (the secretary) and Mr Froggatt (president of the society) also came in. An arranger..ent was made and then he came out of the private office and took a seat in the public office. He noticed someone was with Ritchie in his office. A clerk inquired from witness whom he wanted to see, and he replied: “Mr Ritchie.” A moment later the clerk came back and said Ritchie did not want to see him. He (Austin) replied that he would keep him only a moment as he wanted to show him the ledger. When Ritchie became free, witness knocked at his door and said he would like him to see Mrs Murray’s ledger account. Ritchie said that witness bad been down to Mrs Murray bullying her. Witness denied that allegation; stating he had sent a letter down by his man, Lambert, to her. Ritchie then remarked that Lambert had been bullying her. Witness retorted that such statements could not be substantiated and as witness walked towards the table with the ledger, Ritchie suddenly struck him over the table and commenced pummelling him like a savage brute. Counsel: Did you say anything to him? Witness: I said, “You have broken my jaw.” But at the speed he was going, the words had no effect Could you not offer resistance?—No, because I was partly on my back. “Grabbed The Ledger.” Well, when the defendant did stop punching you, what did he do?—He grabbed the ledger and flung it as far as he could towards the front door. Did you get out of Ritchie’s room? —Yes, as fast as I could. Where did you go?—I went to Mr Hay’s office and complained to Mr Hay and Mr Froggatt that Ritchie had broken my jaw. Did either of them say anything?— No. Continuing, witness said he then went to Dr. Barclay’s surgery for attention. Two teeth had been knocked off the denture. He then had to go to bed at Deschler’s Hotel (where he boarded) for five days. Owing to laceration he found difficulty in eating. Later- Dr. Barclay ordered an X-Ray examination. For about four months he could take only light foods. Even at the present time he could not open his mouth properly, nor chew any hard food. He felt that he was not biting rightly. For three and ahalf months at the hotel he had to have his meals up in his own room. Since his injury he had not been able to devote the same attention to his business which had suffered in con-i sequence. To Mr. Macalister: He had had dealings with Ritchie for very many years but he had never had a grudge against him all that time. Indeed, he called him “Hughie.” Counsel: So this unprovoked assault must have come as a great surprise to you? Plaintiff: Yes indeed. I can’t think why he did it and now to-day I suppose he can’t understand it himself either. You wanted to get your hands on

Mrs Murray’s refund?—l wanted to apply it in reduction of her- account. You would yourself. And you felt rather annoyed you didn’t receive the refund?—Yes. You told Ritchie it was outrageous? —Yes; I still think so. So would you. Counsel: Never mind what I would do, Mr Austin. Confine yourself to the questions. Under further cross-examination, witness said that Mr Hay and Mr Froggatt promised to bring the matter regarding the refund before the first meeting of the directors. Reason For Seeing Defendant. Counsel: Why did you then want to see Ritchie? Plaintiff: I wanted him to see the ledger account with his own eyes. Did not the clerk tell you the matter was out of Ritchie’s hands?—No, the clerk did not know what I wanted Ritchie for. Did you not want to tell Ritchie what you thought of him? —No, I only wanted to show him the ledger account. Did not Ritchie tell you at his door that he did not want to see you?— Certainly not. Did you not force yourself into Ritchie’s office?—That is a deliberate lie. And if two independent witnesses say you did, what would you then say? —I would say that never have such lies been told in this honourable Court. They would be attempting to defeat the ends of justice. Ritchie is here in Court and he could not stand up and say that. If I- was in the wrong I would take my gruel. Don’t come at that, Mr Macalister. You say you didn’t bully Mrs Murray?—l wouldn’t bully anybody. What action did you take after this unprovoked, savage assault?—l intended bringing a civil action. But you did not complain to the directors?—lt had nothing to do with them. It was between Ritchie and myself. And you didn’t got to the police?— I had no occasion to do so; the police wouldn’t put money in my pocket. You thought you had too good a thing on?—Money would never compensate me for what I shall have to suffer the rest of my days. Would you suffer it for what I am claiming, Mr Macalister? What injuries did you suffer?—lf you were to feel here .... Mr Macalister: I have on wish to caress you. Replies to Questions. Counsel: If Ritchie says that you struck the first blow then he is lying? Plaintiff: Yes. I have never struck anyone in my life. But you have lifted your hand to people, haven’t you?—Never. Has it not been necessary for you to be ejected forcibly from other offices? —No, never. You have made very serious threats at various times against persons, haven’t you?—l have never put a threat into action. So you are not a quarrelling, blustering bluff?—No, certainly not. Did you strike Ritchie?—Can you imagine me striking him? He’s a boxer. You raised your hand against Mr George Broughton in his office?—No. If people sit on you, you won’t take it sitting down. You had to be ejected by the police? —I went along to the sergeant afterwards and explained it all. You were forcibly ejected from Mr Eric Russell’s office?—He had an agreement of mine which he kept for three years. Haven’t you threatened to “do” for anyone?—No. What about Mr Mervyn Mitchel?— Yes, I threatened to “do” for him. So you’re a quiet, peaceable man?— You’ve raked up everything for the last 20 years. Mr Macalister: Oh, by no means everything. Witness (heatedly): You’re not so good yourself. Explain to the Court how your business has been affected by your injuries?—Well, how was your business affected when you had rheumatics? Medical evidence as to the extent of the injuries sustained by Austin was given by Dr Anderson (radiologist) and Dr W. J. Barclay. When the Court resumed after the luncheon adjournment Dr Barclay, in reply to counsel for the defendant, said that a broken jaw was a common type of fracture and usually no serious results followed. Plaintiff’s injury was an inconvenience to him and might continue to be so. Mr Hanlon: In this particular case is it not a fact that the results are serious? Witness: There is a certain amount of deformity. Dentist’s Evidence. John Arthur, dentist, said he had been called to plaintiff’s office about December 8, last and had been given an upper denture with two front teeth broken for repair. Plaintiff’s lower jaw was badly lacerated evidently by Ihe edge of the lower plate having been driven into the tissues. In July plaintiff called to have new dentures fitted and witness tried the old dentures which would not fit. The injury to the lower gum had healed, but plaintiff still had difficulty in opening his mouth and the lower jaw appeared to have a slight swing to the left. This swing would affect the articulation or “bite” of the lower teeth and appeared to have reduced the power of the lower jaw. In reply to Mr Macalister witness said that the swing to the left could be corrected to a certain extent, but would never be quite normal. The teeth he had re-made would not be as good as the original set, but would be satisfactory for masticating. He considered plaintiff had a fragile jaw. This concluded plaintiff’s case and Mr Macalister, addressed the jury briefly and said that the defendant did not deny striking the plaintiff, but claimed that he had struck him in self-defence as he was entitled to do after being attacked. Hugh Ritchie, the defendant, said he was accountant in the office of the Southland Building Society, a member of the Invercargill City Council, and president of the Invercargill Returned Soldiers’ Association. He had held a commission during the war. In the course of his duties as accountant he met a great many people every day. He had known the plaintiff for a number of years and had frequently done business with him. He had had a little friction with him some years ago and had found him a very funny man to deal with. During recent years he had got on quite well with plaintiff and had frequently assisted him in his work. Transaction Explained. Referring to payments made by Mrs Murray, defendant said that two extra shares had been paid up to about £35. He informed Mrs Murray that too much had been paid and it was agreed that the money should be paid to her. After defendant had given Mrs Murray the cheque plaintiff rang up and was informed that Mrs Murray had received the money. Plaintiff swore and slammed his receiver up. Later defendant was informed that Austin was waiting to see him and defendant told the office boy to tell Austin that the matter was out of his hands. There was a client, or clients, in witness’s room at the time and when they left Austin came to the door. Defendant opened the door and told him it was no use seeing him as his having written to the directors had taken the matter out of defendant’s hands. Austin forced his way in, closed the door and put his back to it. Defendant said it was no use seeing him and Austin said, “You won’t bluff me.” Defendent decided to put Austin out, but as he approached

him Austin struck him in the chest. Defendant said: “Don’t do that, Austin, you can’t afford to punch me.” Austin put his ledger and. hat on the table and rushed at defendant who put up his hand and pushed him into a seat, at the same time giving him his book and hat and telling him “to get to hell out of it.” Austin put his book back on the table and aimed a kick at defendant and then rushed at him in an excited manner. Defendant fended Austin off with a push in the chest and told him to get out, at the same time backing away until he was stopped by a cabinet. He was satisfied Austin was going to kick him and witness struck him. Austin still came on so witness struck him again and knocked him on to the table. Austin then left the room and witness threw his ledger and hat after him. He had no intention of breaking Austin’s jaw and he was satisfied that if the same thing happened again he would have to use the same means to protect himself. Not Annoyed. In reply to Mr Hanlon defendant said he had not been annoyed over the trouble over Mrs Murray’s money. He had not resented Austin going over his head to the directors. Mr Hanlon: You did not want him to come into his room with his ledger?— There was no need for him doing so. There was no need for it, so you didn’t want him in?—No, I didn’t want him in. Were you sorry that you broke his jaw?—Yes. Did you express your regret?—No; it was his place to express regret to me. Before he went to you he had been to Mr Hay?—Yes, and that made it more ridiculous for him to come to me. When he came in with his ledger in his hand you approached him?—Yes. Why?—To put him out. Why were you going to put him out? —Because it was my private room. Continuing, witness said he had asked Austin to leave before Austin struck him in the chest. Mr Hanlon: Then he put his hat and ledger on the table?—Yes. How then did he, with his ledger and hat in his hands, strike you a severe blow in the chest?—His hat was on his head. Continuing, he said Austin’s right hand was free when he struck him. Austin had kicked him on the shin. Mr Hanlon: You’re a bit of a boxer aren’t you?—No. Oh, Mr Ritchie! Didn’t you talk about how you used to box in the Army and how you learned this jaw-breaking blow?—No. Then you’re not a boxer?—No better than the average young man about town. You swear that you didn’t say you had learnt this jaw-breaking blow in the Army?—l swear that. Blows not Hard. Austin had brought the injury on himself, defendant said. He was only struck twice and the blows were not hard. Defendant saw Austin’s jaw go to one side when he was struck, but had not heard him say that his jaw was broken. Any damage that was done to Austin was caused by the two blows. Thomas McKinnel, a > farmer, of Woodlands, said he had been in the office of the Southland Building Society early last December when his attention was drawn by raised voices. He had heard Ritchie say, “The business is out of my hands.” Witness looked round and saw Austin push his way into Ritchie’s room. It was evident that Ritchie did not want him in. After the door had closed witness heard Ritchie say, “Don’t hit me,” or “You mustn’t hit me”; he was not sure which. Then he heard a lot of shuffling and after about a minute Austin came out and the ledger and hat were thrown out on to the floor. Austin picked up the book and spoke to someone and then left the building. Mr Hanlon: When did you first tell this story?—l never told it before. You never told it before?—Only to Mr Macalister. Witness said that Ritchie saw him later. He was not sure when, but he thought it was a month later. Ritchie asked him if he had seen what happened. He told him he could not see what happened after the door closed. Austin was agitated when he came out, but he was “quite natural.” Stanley Service, a clerk employed in the Southland Building Society’s office, said' that on the day Austin came to see Ritchie he was working at the counter. Witness told Austin that Ritchie was busy and Austin replied that he would wait. Later witness’s attention was attracted by Ritchie’s voice. He heard him say, “Don’t do that again,” or words to that effect and that was followed by a commotion in the room. In reply to Mr Hanlon witness said he had only been told a few days before that he might be required to give evidence. Further Evidence. Alfred Edward Smith, surgeon dentist, said he had treated a good many broken jaws. He had examined plaintiff’s mouth. Plaintiff had an average jawbone—the sort of jawbone a man of his age would have after having had his teeth out for 18 or 20 years. Austin. was a small man and his jaw had shrunk considerably. If he were struck on the lateral part of the jaw it would break very easily. There was a natural deformity in Austin’s jaw from a dental point of view, but no deformity in appearance. The lower jaw was perfectly symmetrical on both sides. He had never known a case where feeling did not return to the jaw, although it might take some time, perhaps two years. There was not much displacement in Austin’s jaw, but he was under some disability at present. Witness did not think there would be any permanent disability. Dr. J. A. Pottinger said he had examined the plaintiff recently and there was evidence of a fracture on the left side, but it was not obvious when looking at him. The lower denture fitted the upper denture, but showed signs of having been ground down to make it fit. He thought there must have been some deformity of the jaw, but it could not be detected by looking at it. He agreed entirely with Mr Smith regarding the shrinkage in the jaw of a man of Austin’s age. Dr. A. F. Ritchie Crawford gave evidence regarding examining plaintiff’s jaw. Plaintiff could open his mouth 1| inches which was slightly less than normal. Witness considered the partial paralysis would disappear in time, and the disability would only be temporary.

Addresses to Jury. Mr Macalister addressed the jury at length and referred to common law as it affected self-defence. Continuing he reviewed the evidence. It was unfortunate, he said, that Austin had sustained a broken jaw, but it was evident from the evidence that he had brought it on himself. Plaintiff had not been modest in his claim. “If his jaw is worth a thousand pounds,” said counsel. “I hesitate to think of what the claim would have been if Ritchie had broken his neck.” Counsel submitted that, on the evidence and in law, defendant was entitled to the verdict. Mr Hanlon said that the jury had been asked to find for the defendant because he was a responsible officer in the Building Society, the president of the Returned Soldiers’ Association and a city councillor, but it was their duty to regard the plaintiff and the defendant as two ordinary members of the community, each entitled to the same consideration and respect. Continuing counsel said that force could be repelled with force, but the force used must be reasonable. It was all very well to say that plaintiff had a fragile jaw, but there was more to it than

that. His dentures had been broken and his gums lacerated and it could not be claimed that they were fragile. He submitted that the story of selfdefence was an afterthought and, even if true, it did not excuse the defendant for going too far. Judge’s Comments. His Honour, in summing up, said that to repel force by force was the natural instinct of anyone capable of self-defence, but the measures taken should be reasonable and no more than, having regard to the urgency of the occasion, what would be necessary. At the same time the law did not require that a man attacked should show a niceness of definition in the amount of force to be used. The jury would have to ask themselves if the assault, which was admitted, was justifiable; if it was unprovoked or, if provoked, did it go beyond what was justifiable in the circumstances? The case was eminently suitable for a jury. The jury should take a broad and calm view of the evidence. If the evidence of plaintiff were accepted no question of selfdefence would arise, but if defendant’s story were accepted then it would arise and it would be the duty of the jury to find if the force used was justifiable. The jury retired for 18 minutes and returned with a verdict for the defendant. Judgment was accordingly given for defendant with costs according to the scale for the amount claimed and witnesses’ expenses and disbursements to be fixed by the registrar.