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Colonial Cases

Dickson v. Jardine Matheson, 1876


Dickson v. Jardine, Matheson and Co.

Supreme Court for China and Japan
Hornby C.J., 6 March 1876
Source: The North China Herald, 9 March 1876




Shanghai, March 6th.

Before Sir EDMUND HORNBY, Chief Judge.


   This was a motion arising out of a suit pending between the above parties, brought by the plaintiff to receiver $312.68, for wages, and allowance claimed for wine money and board.  In his petition, the plaintiff stated that he is in the defendant's service as 2nd engineer of the str. Appin, his wages being $72 per month, with an allowance of $5 per month for wine money, and of $45 per month for board.

   He was rendered unfit for duty in November last, by reason of his having a sore foot, and was unfit for duty until the 18th February last, when he reported himself, and was at once ordered on duty.  He had applied to the defendants for his wages, wine money and board and lodging, accruing to him during that period, amounting to $312.68, but had been refused payment.

   The defendants, in their answer, admitted that the plaintiff is in their service, and also that he was reported by the master of the Appin, on the 290th of November last, to be unfit for duty on account of having a sore foot, but they denied all knowledge that he was unable to do duty until the 18th of February.   Dependants further admitted that plaintiff was entitled to the sum of $188.68, for wages; bit  denied that under the articles of the Appin, he received an allowance of $5 per month wine money, or that they contracted with him for the sum of $45 per month for board.

     Defendants therefore paid $188.68 into Court, and denied that plaintiff was entitled to the balance of his claim or any part of it.  In paragraph six of their answer, the defendants went on to say, generally,

"that they were ready and willing to provide the plaintiff with suitable accommodation and medical attendance, board and lodgings, on shore, for such  period as he might, by reason of illness, be incapacitated from the performance of his duty; band did, on the 29th of November last, issue to him in that behalf, an order for his admission into the Shanghai General Hospital as a second class patient, but that the plaintiff, after presenting himself for admission at the said Hospital, then and there misconduct himself and refused to avail, and did not therefore avail himself of the said Hospital accommodation,"

In paragraph 7 and 8, the defendants further said that from the 29th November till the 18th February, the plaintiff made no communication to them and withdrew himself from their control; and that they were not aware how soon the plaintiff may have been fit to return to duty, but they did, on the 28th February, at his request, consent to his resuming duty.

   Mr. MILLER now moved that paragraph 6 of the defendants' answer should be expunged, on the ground of irrelevancy, and tat the defendants should be ordered to amend their answer accordingly.  The plaintiff's claim was made up of wages, allowance for wine money (which did not come under the ship's articles), and for board.  He did not ask for medical attendance, and he (Mr. Miller) therefore contended that the issuing of the Hospital ticket to the plaintiff had nothing to do with the petition.  The defendant's assertion that the plaintiff had grossly misconducted himself in the Hospital, was perfectly scandalous, and seemed to be introduced only for the purpose of putting it on the records of the Court.

   How could it assist the defendants' case, he was at a loss to see, except it was intended in a sort of roundabout way to injure the plaintiff's case. He therefore moved in the terms of the notice of motion, that paragraph 6 of the defendants' answer was perfectly irrelevant, and that it should be struck out.  At the same time, he would refer the Court to the 47th Rule of Procedure, which described what an answer should be.

   His Lordship failed to see that the paragraph in question was irrelevant.  In the fifth paragraph of their answer, the defendants simply deny their liability to provide plaintiff with wine money and board; but in the sixth, which is in the nature of a plea in confession and avoidance, they say they were ready and willing to provide him with suitable accommodation, medical attendance, and board and lodgings, for such period as he was ill - indicating the place where it was to be received.  But, they go on to say, by way of avoiding that liability, that plaintiff so misconduct himself at that place, that he did not and could not avail himself of their willingness; and they therefore contend that they are not entitled to give it him anywhere else.  They admit they were bound to do it whilst he was ill; but he did not choose to avail himself of their offer, and did not remain at the hospital by reason of his misconduct.

   Plaintiff sued for board and lodging which he would have got at the Hospital, had he remained there.  During his incapacity for work, they were bound to provide him with accommodation at a reasonable place; and when a man is sick, a hospital is a reasonable place.  How the paragraph could be said to be irrelevant, his Lordship failed to see.  It was relevant, as referring to a circumstance in the case, which the defendants relied on as relieving them from a liability which they admit they had incurred under their agreement with the plaintiff.

   Mr. RENNIE said the Court would observe  that in the third paragraph of defendants' answer, it was stated that plaintiff was reported unfit for duty in November last, but the defendants knew nothing of his having continued unfit until the 18th February.  They therefore contended that anything he did to prevent the Hospital authorities treating him was at his own risk.

   His LORDSHIP said if Mr. Miller had nothing more to urge than that the paragraph was irrelevant, he must dismiss the motion.

  Mr. MILLER said he had nothing mire to say.

   Motion dismissed; costs, $15, to be paid by plaintiff.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School