November 8, 1909.]*
SUPREME
COURT,
Monday, November 1st.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR ME. H. H. J. GOMPERTZ (PUISNE JUDGE);
CAPTAIN'S WRONGFUL DISMISSAL,
The action was concluded in which Captain W. Cooper, lately master of the s.s. Tak Hing, sued the Sze Yap S.S. Co., Hongkong, for $858.33, for wrongful dismissal on September 15th, 1909, $750 being three months' wages in lieu of notice.
Mr. Reader Harris (from the office of Messrs. Wilkinson and Grist) appeared for plaintiff, and Mr. P. 8. Dixon (from the office of Mr. R. A. Harding) appeared for the defendant.
Mr. Harris stated that there was a point to which he would like to refer at the outset. The Court would remember that he called a witness, the engineer of the Paul Beau, and that witness stated that to his knowledge it took an hour and ten minutes to get to the wharf. That time was taken from the giving of the "stand by" signal. He wished to call Captain Cooper to give evidence on the point.
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Captain Cooper, recalled, said it was. the custom in all vessels to ring "stand by" to the engine room, which gave the engine department time to allow steam to go back. In all river steamers the "stand by was rung when the vessel was coming through Capsuimun when the red light on Green Island was obscured. When the Tak Hing was travel. ling at full speed it would mean twenty-five minutes from that point to the wharf. On the occasion of which Mr. Lindeberg spoke the steamer had only one engine, so it took longer than twenty-five minutes.
In reply to Mr. Dixon witness said the average time for him to get in to the wharf, after giving the "stand by," was forty minutes. The fastest ships on the river took seventeen minutes, and he had been on six of them.
Chung Leung, an inspector in the defendant Company, said he had known Captain Cooper since June last. Plaintiff had not been a satis- factory captain. First the passengers, the com- pradore and his staff complained of delay in mooring. Letter carriers made a similar com- plaint, and on one occasion when witness was a passenger it took Captain Cooper about three- quarters of an hour to moor his ship. The vessel was then immediately opposite the wharf. Witness reported the matter.
In cross-examination witness said the Tak Hing slowed down before she reached the wharf, but he could not remember how long before. He had never been an officer of a ship, and knew nothing about navigation. He could not tell whether it was the tide that delayed Captain Cooper, but he knew that the Shun Lee was moored quicker. He had never seen the Shun Lee on the east side of the wharf. Compradors, staff and passengers had fre- quently complained to witness about the delay of the Tak Hing in mooring, but he could not remember on what dates. Witness want- ed to be good friends with the plaintiff, but on one occasion while he was on board the Captain lost his temper and threatened to strike him. After this witness did not visit the ship any more.
Do you remember suggesting to Captain Cooper that the rich Chinamen abroad should raise a subscription to buy up Hongkong from the British Government ?-I did not say that. It is rather absurd.
And he never told you you were absurd and ought to join the Self-Government Society of Canton ?-No
You deny it ?--I have no interest in the Self- Government Society of Canton.
You are a Californian-Honolulu merchant ?...- Yes.
Captain Cooper was recalled and questioned by his Lordship.
Have you got other employment yet P-No. Have you been promised any P-As mate, but I could not take it as this case was not over.
When the case is over you are going as mate? -Not now, the berth is filled.
Do you expect to be long out of employment? -I cannot tell.
CHINA CVERLAND TRADE REPORT.
Don't mate's billets turn up pretty frequently? -Yes, but it takes some considerable time to get master again.
Do you expect employment this month P-No. At present there are a very large number of men in the Sailors' Home waiting for employment.
His Lordship reserved his decision.
Friday, November 5th.
His Lordship, in giving judgment, said he had come to the conclusion that there was no cause justifying the summary dismissal of Captain Cooper. The only question, then, was the amount of notice the plaintiff was entitled to. It was quite clear he was entitled to some, and the only evidence before him was of two other cases where three months' notice had been given. He thought on the whole that was sufficient, and gave judgment for the plaintiff with costs.
Mr. Harris-That is $750 for three months, and the amount agreed. Then Mr. Lindeberg had certain expenses. Would your Lordship make an order allowing him $20 for two days' attendance.
His Lordship That is a matter for the Registrar.
Mr. Harris-Would your Lordship make a note that he should be allowed it ?
Mr. Dixon-Only expert witnesses are allowed expenses. My friend called four European witnesses: are they all to be paid?
Mr. Harris-The others did not lose a day. Mr. Dixon-I had Captain Campbell as my witness, and he lost a day.
Mr. Harris. If you'd won the action he might have got his costs.
His Lordship-I don't think it is usual to make such an order.
Mr. Harris-This was absolute expense neces- sitated by the subpœna. The witness had to get another man to take his place on the boat. I am only asking for $20. whereas in point of fact, Mr. Lindeberg had to pay his substitute $30.
His Lordship left the costs to be taxed by the Registrar, and made an order for the payment out of the money in Court.
Tuesday, 2nd November,
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR ME. H. H. J. GOMPERTZ (PUISNE JUDGE).
MICHELL V. LEMM.
In the action between Captain T. A. Mitchell, plaintiff, and John Lemm, defendant, a motion was brought forward for the paymnt of special damages.
Mr. . G. Alabaster, instructed by Mr. H. W. Looker (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiff, and Mr. M. W. Slade, instructed by Mr. P. M. Hodgson (of Messrs. Ewens and Harston) represented the defendant.
Mr. Alabaster moved that the defendant be ordered to
pay to the plaintiff as special damages the sum of $1,500, being the amount the plaintiff has already paid to the Trustee in Bankruptcy, together with such sum not exceeding $15,715,40, as the plaintiff is liable to pay to the said Trustee. The facts, Counsel said, were set out in Mr. Looker's affidavit.
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Mr. Slade objected to the use of this affidavit. He did it in order to get the facts properly proved in the event of an appeal. The position was that the action had been tried and a verdict given for the plaintiff, but the question of special damage was left for the consideration of the Court. Special damage should be proved in the same way as it would be proved if left to a jury. What were the whole series of actions for which the plaintiff claimed that the defendant was liable to pay costs? His Lordship had not decided this, but he must have accurate knowledge of the nature of sach.
His Lordship-As a matter of fact, there are two lists, and the list in paragraph 3 the Chief Justice has already allowed.
Mr. Slade-Subject to taxation I admitted those in Chambers."
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His Lordship-In paragraph 4 you say they are not admitted.
Mr. Slade―They are the bills of costs which may or may not have been delivered by the plaintiff's solicitors in respect of certain actions described in that paragraph. I only want formal proof.
Mr. Alabaster-Subject to our proving the items, I come here on the question of principle. Mr Slade The Court cannot adjudicate on the question of principle until it knows what the facts are.
Mr. Alabaster understood it was not usual to call evidence on a motion, and he said that the Chief Justice had given leave to move the Court to prove these items.
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His Lordship What do you propose: judg ment on this motion and proof of the items before the Registrar?
Mr. Alabaster-Yes.
Mr. Slade -That would be quite agreeable to them, but I have specific objections to certain items which must be decided by the Court.
Mr. Alabaster-Mr Looker s affidavit describes fairly fully what the items are in respect of.
His Lordship-How do you proposeto pro- ceed now?
Mr. Alabaster-I set out the facts in this affidavit and move the Court to order the plaintiff to pay subject to our proving the items.
His Lordship-I understand from the other side that apart from the broad general principle of law, certain items are objected to.
Mr. Slade said this was so, and gave as an instance the prosecution of Ledbury for perjury, and the filing of a nolle prosequi by the Attorney-General on the ground that civil proceedings were pending. Among the items were costs incurred by Captain Mit- ||chell in the defence of Ledbury, and the exact particulars should be before the Court. If the matter went to the Appeal Court, that Court was bound by the evidence which came before it from the Court below.
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His Lordship (to Mr. Alabaster)-Are you proposing to call any evidence?
Mr. Alabaster-No, but the exact item is included in this affidavit.
Mr. Slade There is no evidence for the Court to adjudicate upon.
His Lordship-Supposing the items are re- ferred to the Registrar with leave to apply, will that meet your objection?
Mr. Slade I am willing to consent to any thing which will not bar me from raising the question, but it only means another unnecessary attendance at Court,
Mr. Alabaster said he did not dispute what his learned friend had said about the prose- cntion, and the only disputes that could be between them was whether certain things were, in law, too remote to come before the Court. This was, an action for criminal conversation in which a verdict was given for the plaintiff. Before the wrong took place the plaintiff enjoyed the society of his wife, home life, and was a solvent man. Now he was divorced, without home life, and a bankrupt. ̈ Everyone of these contingencies must, from evidence given, have been within the contempla tion of the defendant as the probable con- sequences of his act. Defendant know the plaintiff and his circumstances.
Mr. Slade-Has that been proved ?
Mr. Alabaster said it must be taken that defendant knew that plaintiff's means would not be sufficient to carry him through expensive divorce proceedings in another country.
His Lordship-He must have had a vivid imagination to imagine all that.
Mr. Alabaster said that if a man committed this terrible wrong he must contemplate that the husband was entitled to a divorce. He was pre- sumed to contemplate the natural consequences of the wrong he committed. Counsel submitted that plaintiff was entitled to be compensated for the loss of his wife and home. That compensa- tion he got from the jury. He was entitled to recover out-of-pocket expenses he had paid, and - the Chief Justice had allowed all the costs he had already paid. Counsel submitted that plaintiff ought also to recover the $1,500 he had already paid to the Trustee in Bankruptcy, because he went bankrupt in consequence of this
case.
His Lordship-Paid to the Trustee for what? Mr. Alabaster said the plaintiff had to pay