SIX PHOTOGRAPHS FOR 2/6

Taranaki Daily News, 30 August 1930, Page 13

SIX PHOTOGRAPHS FOR 2/6

PREMISES HELD TO-BE SHOP LOWER COURT KINDING REVERSE JUDGE DECIDES FOUR API’EALS. Did ;the ■ promises' 'Occupied by a photographer constitute ;a shop /within the meaning of : the Shops and Offices Act? That was. the principal point involved in. an-,appeal heard by Mr.. Justice Ostler yesterday. ..The. magistrate .had dismissed ; the proceedings taken by the-Labour Department against Albert A.. Prescott, and , the . appeal . was brought against this decision by Inspector AV. J. Berryman. On .behalf of the department Mr. C. H. Weston said the question was whether the premises and business Prescott conducted constituted a-shqp within the meaning of tlie Act. ’lt had been ad--mitted at the hearing that Saturday was the statutory half-holiday in NewPlymouth and- that rio notice 'had been' given by’Prescott- of his- intention ; toclose on another day in the week. !It was admitted,- too, that his, premises were ojurn'at 1.30 p.m.-on a Saturday. He undertook- to take six -photographs of Berryman'in six-different positions for 2s Gd; the inspector not having the right of rejection. .The..magistrate had held the place was' not a shop -within the meaning of the Act. His Honour:-Then the whole point is that it was not-a shop. Will you. tell m?,‘Mr. Bennett, why it was not a shop? : •..'■■ On behalf o£. Prescott, Mr. A. A. Bennett submitted that whereas the section wits tie signed to protect assistants: as far as their half-holiday wag. concerned, in this case'-there-were no assistants; 1 c no infringements of their . rights.; ‘ His Honour: That might be a reason for. no prosecution, but it is no argument that it is not a shop. ' Counsel said his submission in the lower court was that the money was paid for work .and labour and not for goods gold. But the defence had. gone further aiid said that even if it were go the premises did "not come within the definition of a shop. A shop meant a place where goods were kept or exposed or offered for sale, or place in which any part of business within themeaning of the Act was transacted.. In this instance nd goods were exposed or offered for sale. There' was simply a machine operated by the proprietor to produce six photographs of the sitter in different positions.; W 7 hen the. photographs came into existence they were the property of the sitter; they were even sold to him before camo into existence. A shop had been : defined as more - than a mere place of sale.. The word, .imported a place , where woods were stored for sale. These premises, it was contended, were merely a studio where . the proprietor worked for those who engaged , him, ;an<l : not'a shop in which ,he did anything ,iq The - ordinary , nature ,of the business •, of a abqp. .’. In short, he. was there awaiting' employment by any person..who desired his. photograph taken in six different positions for ,2s 6d., Once the work' was completed, the gitfer was entitled to receive the photographs. ’ ,Jlis. Honour said he considered -the.' magistrate was wrong, in- his decision.■ Even - though the. proprietor kept. nb ;goods . for. sale he offered, to sell photographs. .. . ,’ 3 Mr. Bennett .submitted an offer to sell was not the same as offering.for sale.' His Honour: What is a photograph but a chattel?

Mr. Bennett maintained photographs were jakin to aii architect’s plan's and ftpecifications, which had been held to be 'work and labour and not chattels. No .other person than the sitter'could buy those ’ photographs; they were of nd value to anyone but him.' ' " : ••

His Honour intimated it was’libit ne-j ceseary' for him to hear Mr. Weston.; He had cornu to a eleaV"conclusion on the matter. The magistrate had decided the place was iidt a ehop, but in that opinion HiA "Honour regretted he was unable to agree. He maintained a photograph Was a chattel and was offered for sale. In this case they were offered for ealc to all sitters who liked to come. . .

‘ X main canon was 'that' the words of a statute must be construed in : the, ordinary and popular sense. His Jlpn-, our undertook to say that if any ordinary person' were placed in front , of a photographer’s establishment .in Devon Street he would say it was .a shop and a photographer’s shop. In His Honour’s opinion a photographer’s shop was within the meaning of the Act, even if it did nbt ' chattels. It seemed an' offence was committed !and the magistrate should have convicted'. He could see no' distinction' between this and' an ordinary' photographer’s shop, whether the sitter had the right' of rejection or not. What the sitter was paying for was chattels. The appeal was upheld and £6 te. costs and disbursements allowed, the case being remitted to' the magistrate to enter a conviction and impose an appropriate penalty. ' ■ ' ■. • • . 4-‘—i'**■•? ' r- r- .’•»•: . • , i RATES ON A RIFLE: RANGE. SHOULD "LESSEE-.PAY THEM? " The question whether Arthur Janjes Mack as licensee • of the -Rewa Rewa rifle range for grazing purposes made him liable for rates on the property was the main point for consideration in the appeal of the Taranaki County Council (Mr. R. 11. Quilliam) against the decision of the magistrate in lower court proceedings. The position was that Mack hold, a license to use the rifle range for a period of ten years, provision being made that he should use it for grazing and pastoral purposes only. The license wave the Crown power to use the land ?or the holding of training camps and for any other defence purposes the Minister thought necessary. The Taranaki County Council sued Mack for rates, but the magistrate found he was not liable because he did not have exclus' e occupation or a tenancy for six months that would constitute him liable under the Rating Act. His Honour pointed out that the question seemed to be whether Mack had a license or a lease. Mr. Croker sought to show that he did not have exclusive possession. He had to remove his cattle while the range was in us; for military purposes. Counsel submitted that a lease or license that said that at any moment the lessee might be excluded from any part of land could not be said to give him exclusive use and occupation. Mr. Quilliam said, the Defence Act, 1921,'igave’the Minister full power to

grant a lease on any- conditions- he thought fit. He submitted Mack had sufficient possession to constitute him tlie occupier: for' purposes of rating. He maintained the rights reserved to the Minister over the property affected only a limited section authorised by the military authorities. As_ a matter of fact, in view of the decision of the present Government, the ■ number of persons using the ’range' Would be reduced materially, . and probably very few persons indeed would be given the right to ure the property. Counsel submitted that the .' Minister, for instance, could not -under the terms of the lease or license give a football team the right to use the projierty. That right was restricted to persons desiring to° use the property for military purposes. Referring to a matter raised' by Mr. Croker, Mr. Quilliam said he was willing counsel should have tlie opportunity of looking tip authorities for ; a superior right to use the property, but he wag perfectly sure, they could not bo found. ...

. . His-Honour. gai<l. cp i in ! ibi-,<;ould sub--mit. in writing; within ..five days authority for a.stqtutory right‘of defence force to occupy the land, apart from , th<' r provisions of the lease. His Honqur reserved his decision. ; • j COLLISION : AT INTERSECTION. 1 CASE REMITTED TO MAGISTRATE The judgment of the" magistrate at New Plymouth in favour of Father Bair-Brown in connection with a collision -with- a motor van owned by J. Gunning was questioned on "pointe of law. ' The accident occurred' on September 27, 1929, ■■ at the corner of DaWson and Devon Streets. Gunning’s van was being driven' ’by C. R.'Jeffries along Devon Street towards town, while-the car waft travelling dowil the Dawson Street hill. MY; C. H. Cfoket for Gunning, ‘the\ appellant, and Mr.- R- H. Quilliam for Barr-Brown, the? re&pondcnt; . - Ha villa read the papers His Honour said to Sir. Croker that it looked as if he could not possibly say -there was not negligence .by Gunning’s driver. The only question could be that of contributory negligence by Barr-Brown. Counsel said that was what he relied on. He pointed out tliat BaiiBrown had. said he was travelling at seven or eight .miles an hour and not more than' ten miles an hour. The magistrate had not found Jeffries was travelling at an excessive speed and there was°no contest concerning' the' speed of either party. Barr-Bro vyn had admitted he did not see the van until, the collision. Surely that was sufficient to show there . was contributory negli-o-ence? He. had had ten seconds in which to obtain a view of oncoming in Devon Street but had admitted Seeing nothing. Neither Jeffries nor his passenger did. see Barr-Brown and both were of the opinion that .he had givey them,the right-of-way.' Yet travelling at seven or eight miles an hour hp saw nothing. ' ■ , Mr./ Quilliam ’ submitted . Barr-Brown was'in no way . negligent. But for the purposes of the appeal he need not go as far as that.' There was ample evidence to justify the magistrate m finding there waisub contributory /negligence. .'.it "showed clearly' that "the last ppportufiity . of,, avoiding the accident wasentirely. ,yyith (Gunning’s, driver. A driver’s -main, duty, wa's to look to the rigfit ..at an , intersection. Barr-Brown looked, to the' right and left and saw nothing., The explanation of .that was that, Jeffries was so far away thjit he wap not in ; the field of vision aiid tlie explanation of the collision was that Jeffries was travelling at an excessive 'speed. If was true the magistrate had not expressly found Jeffries was going too fast, but there was ample' evidence to have justified such A finding, His Honour said that on the' facts found by the magistrate there could be no doubt that Jeffries was guilty of negligence, I but oil ■ the facte found the only ° reasonable 1 assumption was that Barr-Brown was guilty of contributory negligence; Barr-BroWh looked' to his •right and saw no One. On Barr-Brown s own' admission of speed he would have taken ten seconds to -cover loff feet. During that time -he never, looked to the left at all? If he.had looked to his left he would 'have :seen Jeffries and could have ■ avoided the .-accident. It was obligatory on drivers? to keep a • proper look-out. ■, If’ i one wdriver. Were '■negligent but the other''had', had a Yeas--onabfe opportunity ©D.avoiding..the accident and: did noU.takerit hqi'.waft’gtiilty ■ of contributory negligence.??(HispHonour thought the magistrate.;.-!was?.demon-strably wrong in flndingi-ithetei.waa no contributory negligence diy RaiX-Brown. Jeffries had broken the. iright.-hand rule and there was no doubt he> .whs more o-uilty of negligence than; BaiTJTnßrown, but the latter had the ihuit opportunity of avoiding the accident‘and, .was therefore • guilty - 'of contributory; negligence •and could not succeed: anchia, claim. In His Honour’s opinion ifhis one of those cases in which neither party should sue the other. The appeal would be allowed, with £5 5s costs, and the ease remitted to the magistrate to en- ■ ter judgment for DAMAGES TO A MOTOR-CAR.

I.OWER'COI *RT JUDGMEN’F ; VPHKLD An ; appe.il 'from the decision. of the magistrate at Stratford 'was brought by Ernest aim. Qface Harper (Mr. Stewart). They had been ordered to pay Alice M. Pitt (Mr. Alfred; Coleman.) £5O in respect tc dairiagcs/to a cat during a collision. . - . . The facts were that bn. Apgust 6,. 1929, a car driven by Grace Harper collided with one driven -/by Alice Pitt. In the lower court it-had: been' alleged that Grace Harper hadWa&d the accident through negligent' arid unskilful driving and had thus, damaged Alice Pitt’s °car to the extent' of £45 9s. On September 1, 1929, respondent exchanged her damaged car for.a new..and similar one and paid £5O in cash. The decision of the magistrate' was to give her £45 for' damages ■-to vthe ear and £5 general damages. H/H- .■:■ Mr. Stewart submitted .The' judgment could not jpo.ssibly. ,b?. jsuppprted. _ The original price of. the,,car was £550. It had been on the .roads about two months and had- done about 200. miles. Counsel contended that’ by trading the car in arid; paying £5O for a new car worth £550 Mrs. Pitt placed herself in a better position than originally. She had not given the other side the opportunity to repair the car. He contended that in getting £5OO allowed for her car she received the full market value. Apart from the damage caused by the collision the depreciation on the car would have been at least 10 per cent, on the original cost; 'No ah : lowance had been made 'by. the magis-

trate for that; the car was really sec-ond-hand. r . ; After Mr. Coleman had replied the judge) in dismissing "the appeal with £7 7s costs, said the argument of the appellant was based on the fallacy that it was the market value of the car that was concerned, whereas it should be the value to the appellant herself. The theory of damages was that she should be restored to her original position. The damage to her car was caused by the negligence of the other party and was assessed at £45. She had had practically a new car at the time of the accident. After the collision she chose to exchange it and pay £5O for a new model. The new car was of no greater value to her; by paying £5O fihe had put herself in the same position as before. It seemed to-His Honour she was entitled to the value of the repairs, £45. After referring to the authority of the House of Lords the judge said ho could not say £5 ae general dafaiagee was ■ vruiuu ■ :.<i •j-ltlilloVl