1930-02-11 — Page 7

MISSING PARCEL OF DIAMOND.

HEAVY CLAIM "AGAINST LOCAL BANK.

1'

· ANTWERP MERCHANTS LOSE THE ACTION.

BANK GETS JUDGMENT WITH COSTS.

A lengthy judgment in which interesting legal points were clugi- dated was given by the Chief Justice (Sir Henry Gollan) at the Supreme Court yesterday in the action brought recently by Messrs. Louis Kornitzer, Henri N. Gutwirth and Isaac H. Goldberg, diamond merchants of Antwerp, to recover from the Bank de

Indo-Chine the value or return of a package of diamonds alleged - to have been sent by registered pust over seven years ago and which the defendants failed to deliver...

I

Evidence taken on commission was read at the hearing which lasted three days. Mr. F. C. Jenkin (instructed by Messrs. Dea- cons) was for the plaintiffs, Mr. Eldon Potter, K.C., with Mr. H. G. Sheldon (instructed by Messrs. Johnson, Stokes & Master) appearing for the defendant bank

costs.

His Lordship gave judgment in favour of the defendants with

CHIEF JUSTICE'S DECISION.

THE HONG KONG DAILY PRESS, TUESDAY, FEBRUARY 11,

In the course of his evidence.

1930.

The plaintiff's contention was that ROUND THE COURTS.

the defendants must show that the loss happened in some way they could account for, and that in re- lation to that particular matter and

- HIS SISTER'S "SWORN

SISTER."

..

Louis Kornitzer als mentioned the fact that in the case of other similar packets received by the local branch on his behalf, he had noticed that on one or more occasions, when heat that particular moment of time called for a packet, it was on the proper care was taken. No autho- "A Chiness was charged before Mr. top of a safe in the general officerity had been cited for such a pro- T 5. Whyte Smith at Kowloon. of the local branch, and was handed position as that. It was enhancing Magistracy yesterday with assault- to him from that place, but he did the burden of proof upon a defending a woman. Mr. J. M. Remedios not allege that this method of ant to an absurd extent if he had who appeared on behalf of the com- keeping a packet handy to deliver prove not only that he had taken plainant intimated that she was not to him when he called for it was reasonable care but also that he seriously, hurt and would be satis- negligent or showed any absence of knew how the less happened." In fed it a nominal fine was imposed care, nor did he, when he observed" Bullen . The Swan Electric En- and the defendant bound over. what was being done by the local graving Company" the defendants branch, raise any objection.

were held to be gratuitous baileca When the case for the plaintiffs but in my opinion at least an equal was closed, Mr. Potter, K.C., who responsibility would be imposed on appeared for the defendants, sub-a bailee for reward, mitted that there was no case. He This particular aspect of the called my attention to Giblin .iability of a bailee is also fully dealt with by Wright J... in the McMullen," LR. 2 P.C., p. 317, course of his judgment in Gosse and relied strongly on a passage Canadian Government Merchant from the judgment of Lord Chelms- Marine" (1027) 2 K.B. at p. 430. ford, who gave the judgment of the Defendants Admit Receipt of Board, which is to the following

Parcel effect: If, therefore, the plain- tiff's evidence in this case was such that it fell short of proving the bank to have been guilty of that species of negligence which would render to an action, he tie the presiding Judge at the trial) ought to have withdrawn the case from the jury and directed a non-suit," 335). And a little later on, (at

Giving judgment, his Lordship. The plaintiff, Louis Kornitzer, said: The plaintiffs are diamond stated that by an arrangement be- morebants carrying on business at

tween himself and the other plain- No. 40, Ruc Coquilhat, in the City tiffs, he was to act as a salesman of Antwerp, and the defendants of precious stones in China and the are a banking company incorporated East, and that for the purpose of in France and having their head facilitating his business he opened in the judgment, Lord Chelmsford puts the question which was under office in Paris. They also have a an account in "August, "1921, with the consideration of the Court in branch in Hong Kong, which is the defendants. He says that he plaintiff, then, give any evidence of the following terms, "Did the hereafter referred to as the local informed M. de Broc, the cashier of the bank having been guilty of that branch.

the local branch, at the time of degree of negligence which renders opening the account, that his gratuitous bailes liable for the Antwerp correspondents would ad him of property deposited with

him! (at p. 336).

By their statement of claim the plaintiffs allege that the defendants.

on or about July 15, 1099, received at their local branch, as bailees for reward, or, alternatively, as gratuitous bailess, a parcel contain- ing diamonds belonging to the plain. tills, of the value of £3,099 15s. 4d., to be safely kept and taken care of by the defendants for and on behalf of the plaintiffs."

וי

As I have said, the defendants admit the receipt and loss of the particular packet of diamonds in question in this case but they any that they are unable to state how and when the loss occurred. But they called a witness, a M. Piguet, who was from August, 1920, to about July, 1821, correspondence clerk to the local bratch. Then he was

The defendant said that he was. drunk at the time of the incident but did not assault the woman. Ho was born in Japan and on returning to Hong Kong had gone in search of the complainant who was "sworn sister of his own sister, When he found the complainant she refused to have anything to do with him,

✡

The Magistrate imposed a fine of $10 and bound the defendant over for six months to be of good be- baviour.

1

TOO OLD FOR THE BIRCE:

Whyte Smith for returning from A Chinese who was before Mr. banishment, after being deported in September 1929, was sentenced to ten months hard labou

In passing sentence his Worship remarked that the man was 49 years of age, and too old for birching!

second accountant for a few months, became cashier in May, 1929, and remained in that position until he He stated that the correspondence went on leave some time, in 1821, clerk dealt with the mail received tenced to eight months' hard labour A female banishee was also son- by the local branch itself or on

for returning before her time was behalf of customers. If a register-up. She was deported in May 1926, ed parcel arrived for a customer for five years under the Opium care of the local branch, the corres- Ordinance. - Privy Council Decision,

pondence clerk would give a receipt It was further argued on behalf parcel inside a compartment of a to the postman and then place the of the defendante that Giblin safe which stood in the general McMullen was a decision of the office. The chief accountant kept Privy Council and bonnd this the key of this safe and the com- Court, even if there were decisions partment above referred to was to the opposite effect of the Eng kept locked.

There were in, the statement of claim also claims for conversion and for the wrongful detention of the above-mentioned parcel of dia- ants, and that a term of the arrange-case for the defendants to answer. monds, but these claims. were not ment was that the local branch proceeded with at the hearing behould receive and keep safely all packets addressed to him, to their

fore me.

dress "packets containing valuables to him ears of the local branch, and that he, Louis Kornitzer, adopted this method of procedure because he had no settled place of business in Hong Kong, and wished to avoid any question as to the condition inlish Courts. which the packets were received. I If the mere alleged loss of an have not been able to read, this planation of the eircumstances at- articlo, unaccompanied by any ex- statement, and others of a similar tendant upon such less, raises no kind, to mean that Louis Kornitzer prima facie caso against a bailee, opened an account with the defendthen I am of opinion that I ought to have held that there WAS no At first sight it would appear as if affirmative evidence of negligence must be given, according to the judgment in Giblin v. MeMullen"

box of securities belonging to the facts relating to the keeping of the plaintiff and deposited with the de fendants in that case were known his case. These facts were such as to the form and proved as part of to negative negligence in the baileer and consequently no presumption could arise as would in a case where the bailee merely stated that the article deposited was lost and con- descended on no explanation of the circumstances under which the loss occurred or might have occurred.

STOLEN STEAM VALVES."

When charged with being in an lawful possession of three brass steam valves, a Chinese who appear ed before the Kowloon Magistrate If mail arrived in the absence ofaded guilty. He said they were the chief accountant, it was placed from a ship which had already left on the top of the safe or on his port. deak because he always kept the key of the compartment above re- ferred to.

His Worship sentenced the defen- dant to a month's hard labour, say ing that this was à serious form of theft.

BIRDS OF A FEATHER.

The receipt, alleged value and care, though it is clear that one of (supra) but in that case all the Probability was that the Chief Ac-peared before Mr, Whyte-Smith

Leese Martin,"

defendants, was the convenience and security of having packets addressed to him at the local branch.

It was also argued, on behalf of the plaintiffs, that the defendants

were bailees for reward in conse

tendant on the loss can in the great majority of casca only be known to the bailee. A bailee need only allege loss and if the bailor cannot give affirmative evidence of neglig ence, the latter must be held to have failed in his claim. If such is the law I must apply it regardless of hardship.

Quite a number of Chinese ap- yesterday on charges of larceny of iron bars from building contractors' aheds. In most cases the defan- dants were sentenced to one month's

previously convicted was given two a fine. Ono man imprisonment without the option of who had been months hard labour.

ESTATE OF MR. JOHN WARWICK.

WILLS PROVED IN LOCAL COURT.

Probate Division of the Supreme Among recent wills proved in the Court is that of Mr. John Warwick, retired captain of the Mercantile M. Pignet further stated that at pect any member of the staff of dis-e, 1998. He left local estate worth Marine, who died at 35, Wilbury no time did he have reason to sus- Avenue, Hove, Sussex, on October honesty.

Bank Acted With Cara, and"

$15,600 and gross estate in the United Kingdom of £7,558 58. 7d.

Testator's widow, Ameila Tran- aack Warwick, a friend, William Dick Brown Miller, of Messrs. But- terfield and Swire of Shanghai, and

M. Piguet stated that this last mentioned procedure probably no- counts for the statement made by Louis Kornitzer as to registered parcels being taken from the top of the safe and handed to him. The countant was busy when the parcels Joss of the diamonds, was admitted the reasons which, in addition to

arrived and so the correspondence elerk may have placed the parcels by, the defendants, and the only business considerations, induced

on the top of the safe, awaiting the question at issue between the him to open an account with the

attention of the chief accountant. parties was as to whether the de-

if there were any registered parcels M. Piguet went on to say that fendants had fulfilled the respon-

on top of the safe when the sibility cast upon them by the law

luncheon or closing hour arrived, in the particular circumstances of

they would be placed inside the safe and the cuter door of the safe the case, and whether they have

would be locked by the chief ac- made out their defence which was that they were gratuitous bailees, quence of what Louis Kornitzer

was too bulky to be locked up in countant. If the registered parcel that they took reasonable care of calls a verbal understanding," the parcel of diamonds which was that he should do T.T. business

the safe it would be placed in the If the argument is correct that strong room. He also gave evidence lost, stolen or wrongfully removed through them. But when the evi- Giblin v. McMullen" (supra) re- from them by some person or per- dence on this point is looked at, quires that in all cases brought by

to the effect that during banking sons unknown, and that they had it is clearly seen that there was no

hours no one except the staff of the the bailor against a bailee, the Bank had access to the safe in which been unable to trace such parcel. binding agreement by Louis Kor- former must give affirmative evi the registered mail was kept and I think it is clear from the author. nitzer to do this class of business dence of negligence, then the posithat no stranger could have apprach- itica (see Giblin v. McMullen," through the defendants. Louis tion of a bailor is one that may L.R. P.C., p. 317; in "re United Kornitzer only states that he pro-involve him in great hardship. In work in the general office.

ed it without passing the clerks at Service Company," L.R. 6 Ch. App., mised to give them as much busi-most cases he can only prove the p. 212, and

nces as he could, provided the rates delivery to the bailee" and the fact LR 17 Eq., F. 224) that a banker of exchange offered by the local that on demand the article deposit who receives a parcel on behalf branch were not considerably highered was not returned; the facts at of a customer is, prima facie, a thar those of other banks. gratuitous bailee unless he receives Mr. Kornitzer's Bank Remittances. reward. The mere opening of an

Prudence. account with the banker is not suf The evidence shows that T.T.

Unfortunately, M. Prudhon who ficient to make him a bailee for business to the extent of 2220,000

was correspondence clerk when the reward in respect of any parcel re- was put through by the defendants

lost packet was received, is dead, ceived by him unless the undertaking for him, but on the other band

but it was argued on behalf of the solicitor, George John Clower, of to take care of valuable property Louis Kornitzer remitted $181,000

plaintiffs that there were other em- Brighton are appointed executrix is made a condition of opening the to Antwerp through four other

ployees of the defendants, French, and executors. A sum of £230-free account, or is offered as an induce- banke in Hong Kong. No claim has ment to do so. If there is no such ever been made on behalf of the Mullen," and even that case does

But apart from Gibline. Me- Portuguese, Chinese and Annamite, of legacy duty is bequeathed to each at the local branch at the time of of those who undertook the provid- condition made or inducement offer defendants that all T.T. business not, for the reasons I have given, the loss, who might have been calling of the will. The major portion ed, then the banker is a gratuitous should have been done through them, seem to me to impose such a serious ed, or whose evidence might have of the estate is bequeathed to the bailee and only bound to take the and it is clear from the evidence disability on a bailor, the author- been taken on commission. The widow. same care of the property entrusted that it was never in contemplation ities to which reference is made answer of the Bank to this criticism to him as a reasonably prudent and of the parties that the defendants below,, appear to me to establish is that they have called the only careful man may fairly be expected were to be the sale agents of Louis the rule that where only the fact witness whos evidence could be of

Au Yueng Ping Shu alias Au to take of his own property.

Kornitzer for this purpose. He of loss is known to him that this assistance; the evidence of a M. Yung Sing Woon alias Au Yueng Responsibilities of Ballees..

used their services as well as those may be prima facie evidence of Korwin, who in October, 1922, and Ching Woou, wine and spirit deal- of other banks, to suit his own negligente on the part of bailee subsequent to the loss in questioner, who died at 6, Yung Sin Street, Probably a banker would be fur-interests and convenience.

and at least call upon him for an in this case, came to the Bank as Canton on or about Dctober 24, ther required to avoid neglect of the ordinary care which bankers display benefit from this source, it was

Though the defendants did receive explanation.

Sub-Manager, had also been taken 1920, left local citate worth $20,000. "Phipps. New Claridge de bene esse but it was not read Probate, has been granted to two of in respect of their own property of not the result of any agreement and Hotel, Limitel," L.T.R. 49, as it said no more than M. Piguet testator's sons and a concubine, all value, and to make use of all was independent of the permission guest at an hotel had entrusted deposed to. In any case, there is of whom are living at 68, Des Voeux facilities at his command for safe given to Louis Kornitzer to have three dega to the care of the de- nothing to show that the employees Read Central. The will directa keeping, and this, irrespective of packets sent to him from Antwerp, fendants. They were put in a zoom who were not called could have that the sum of 82,000 shall be ap- whether he is a gratuitous bailee addressed to him caro of the local which was locked and the key re given any material evidence, and Ipropriated for the marriage ex- or & bailes for reward. It is due branch, and cannot, therefore, bemained in the possession of the de- see no reason for disbelieving the penses for every daughter. The to considerations of this kind that considered as consideration given for fendant's servants. When later in statement made on behalf of the bulk of the estate goes to the family. it has been remarked bankers the receipt by the defendants of the day the plaintiff sent for the defendants.

Letters of administration to the being generally provided with such pickets addressed to Louis Kor-Bray J. in the course of his judg adopted by the local branch with salesman in the explorat Kal dogs, one of them was missing. I am of opinion that the procedure estate of Ho Ping Chi, formerly a applicances and safeguards, the nitzer at the local branch. question as to whether the banker is a gratuitous bailesc or a balce of the arrangement as to the re- was placed in the defendants cus- customers was a reasonable one and to a son, Ho Nai Fai, of 16, Yin I hold, therefore, that in respect it was once proved that this dog. mail received by them on behalf of Honam, Canton, have been granted. ment is reported as saying "When regard to the handling of registered Tungar Firm, 1, Fook Lain Tai Kaí, for reward becomes, practically an ceipt of packets come to between tody as an ordinary bailment, it shows that they acted with care and Lok Lane, Canton. at present stay. academic one in estimating the Louis Kornitzer and the deferidante, was their duty to show some circum prudence in the carrying out of the ing at 102, Wing Lok Street. degree of care to which he is the latter were gratuitous bailees bound."(See Paget on "The Law of any packets addressed to Louis stances which negatived the idea of responsibilities imposed upon them of Banking" (3rd Ed. at p. 87) Kornitzer care of the local branch negligence on their part. No such by the law. I can see nothing in For, is was said by Lord Lough-and received by them.

evidence had been placed before the case to affect them with gross borough in Bhiclls v. Black-

him.

negligence or with any absence of burne, 1 H.B.)., at p. 163, "IfThe only evidence given in sup- In giving the judgment of the the care which a reasonably prudent a man gratuitously undertakes to port of the plaintiffs' ease of gross Court of Appeal in "Bullen v. The or careful man would have taken do a thing, to the best of his skill negligence, if the defendants are Swan Electric Engraving Company "if the packet lost had been his own. where his situation or profession gratuitous bailees, or of lack of or-23 T.L.R. at p. 250, Bir Gorell I hold, therefore, that the de- Leung Lap Chee, who died at 35. is such as to imply skill, an omia dinary and reasonable care if they Barnes said "They were left, there- fendants have discharged the onus Ko Shing Street, Hong Kong, on or sion of that skill is imputable to him are builess for reward, was inability fore to the consideration of well thrown upon them, on the principle about September 21, 1920, left locul as gross negligence."

of the defendants to deliver the known principles of law. One of laid down in Bullen v. The Swan estate to the value of $4,300. But as it might possibly become packet of diamonds in question in these was that a gratuitous bailes Electric Engraving Company Cheung Shi, concubine, living at of importance in the cree of an this action when called upon to do must show that the loss occurred (supra) by the admitted loss of the 4. Yu Lam Terrace, Hong Kong,-is- appeal, I think it well to deal with so, because of its alleged ices, and through no want of reasonable care parcel of diamonds in question in appointed executrix and to her pro- the evidence adduced as to whethe absence of any explanation by on his part-that was to say, as these proceedings and that they are bate has been granted. She comes ther the defendants were gratuitous the defendants as to the circum much care as a prudent man would entitled to judgment in their favour into 6, Kowloon Tong under the bailece or bailees for reward. stances attendant upon such loss." use in keeping his own property, with costa.

will,

In

Wine Dealer's Estate.

Testator died at Canton on or about December 18, 1928 and left local estate worth $6,200.

".

The widow and concubine, both bearing the name of Ho Chan Shi have renounced all their rights and titles to administration.

Wm. POWELL, Ltd.

10, Ice House Street.

SHIRTS

that are

perfect

guaranteed fast

to

Sun and Washing.

To men who are used to

the best that money

...can buy" we can offer nothing more certain to

please than "ATLAS " Shirts.

Stocked in Zephyrs, Prints and French Cambrics in a variety of designs-with two collars to match each shirt, at prices ranging from $6.50, they offer the utmost value obtainable.

We also stock "ATLAS" Cloths and make to individual measures at the same price.

A call of inspection will be appreciated.

Without

ELECTRIC

TRIC

RECORDIN

Columbia NRECORDS

Scratch

9881-LIONEL MONCKTON'S MEMORIES...

DEDEOT SOMER'S BAND 9722-3-MELODIOUS MEMORIES-POT POURRI....

BEGAL CINE' OROR 9836-WALDTEUFEL MEMORIES...Fixax's 'Qach 9480-1-SCHUBERTIANA 9822-LO, HERE, THE GENTLE LARK...

GRENADIEZ Guards Band “ 9869-IN A CHINESE TEMPLE GARDEN ...

KETILBEY'S. ORCH

The Anderson Music Co., Ltd.

DRESS SHIRTS

CUT COAT STYLE

One or Two Stud, White Stiff Front, Cotton or Linen Faced with

Really

Good Wearing Body Cloth. Blunted Caffs.

$6,50

$8.50

Two-Stud Best French Piqué or Morcella Front, in Coat Style only, with Plain Cuffs.

$8.50

$9.50

Lane Crawforofte

MEN'S WEAR STYLISTS.