SUPREME COURT. SITTINGS AT BURNIE.
Examiner (Launceston, Tas. : 1900 - 1954) Thursday 31 July 1913 Edition: DAILY p 3 Article
SUPREME COURT. SITTINGS AT BURNIE. (From Our North-Western Representative.) A sitting of the Supreme Court in its civil jurisdiction was held at Burnie yesterday, before his Honor Mr. Justice Nicholls, and a jury consisting of Messrs. R. Dudgeon (foreman), F. M. Bridley, All. Byrne, John Hays, and W. H. Berry. Archibald W. Ford, of Smithton, manager of the Marrawah Tramway Company, and Ernest H. Fenton, of Smithton, contractor, each sued Harry A. Fitzmaurice, licensed victualler, of Smithton, and Claude Byron Fitzmaurice, of Stanley, generally known as "Jack" Fitzmaurice, for £300 as damages for unlawfully assaulting and beating them at Smithton on February 16 last. Messrs. J. W. Hudson and T. J. Crisp appeared for both plaintiffs, Mr. M. J. Clarke for Harry Fitzmaurice, and Mr. W. Hodg man for the other defendant. Ford's action was taken first. Mr. Hudson, in opening the case, said there were, in his opinion, two good reasons for having the case heard in the Supreme Court. The first one was that Ford, being a J.P. for Circular Head, did not want to bring it on there; on the other hand, he preferred a court where it could not even be suspected but that justice would be meted out. The second reason was that the case was regarded as of too serious a character to bring before a local bench, where a fine of probably 10s and costs would be inflicted. The latter was evidently what defendants expected when they made up their minds to commit the assault, His client certainly did not suffer any great physical injury, but the discoloured eye inflicted by defendant prevented his taking a seat on the bench for some time. The assault was unprovoked, and apparently premeditated. Plaintiff, sworn, said that in February last he was a member of Circular Heaa council. Fenton, the other plaintiff, was also a member of that body. Had a conversation with Harry Fitzmaurice and the father of the latter over municipal election matters. Harry Fitzmaurice requested witness to cease his friendship with Fenton, otherwise they (Fitzmaurices) would end their friendship with him. On Sunday, February 16, a motor car pulled up at his residence. It contained both defendants and men named Greig and Smith. On going to the door of his residence, in response to a call, he was confronted with "Jack" Fitzmaurice, whilst Harry was only a few yards away. The other men were leaning over the front fence. "Jack" asked if Fenton was about, and witness replied "No," but added that he was expected in the evening. Harry then dealt him a heavy blow on the right eye, felling witness to the floor of the verandah, practically stunning him. He was also kicked, but through his dazed condition could not say who did it. The blow was delivered without the slightest warning, and immediately prior to it being delivered "Jack" accused him of calling his mother a b- liar. Owing to the injuries he had to see the doctor on three different occasions. Had a bad eye for a long time. To Mr. Carke-Had no idea why defendants came to his place that Sunday and committed the assault. Defendants bore a good character up to that time. The action was brought on account of the damage to his reputation and the insult to his wife and family. "Jack" Fitzmaurice never said he had come seeking an apology on behalf of his mother. Never said he or Fenton were in the wrong. Was a close friend of Fenton's. About 18 months back broke the windows of the Rocky Cape Hotel. He regretted his action, and paid for the damage without delay. At this stage Mr. Hudson objected to the cross-examination, but his Honor pointed out that technically it was admissible. The cross-examination continued. The night before the assault Mrs. Fitzmaurice took a shelf ornament out of his motor car. Could not say how the ornament got into the vehicle. Did not hear Mrs. Fitzmaurice complain about he or Fenton breaking the hands off her clock. Never broke the windows of a church at Marrawah, but a number of his party did. Was never turned out of a hotel in his life. Did not roll a number of empty casks that were lying in front of the Smithton Hotel on Christmas Eve, out on to the roadway, or say he would do - another objectionable act. Was not in the habit of periodically doing "playful tricks." Did not knock "Jack" Fitzmaurice off the verandah of his house at the time of the assault. Examined by Mr. Hodgman-It was about 6 p.m. on the Sunday when defendants came to his house. Did not say to a man named J. L. Casey that both he and Fenton were slightly in the wrong. Had seen Casey drunk several times. Mr. Hodgman-Yes, I think you have had a good opportunity of seeing him in that condition. Witness-That remark is uncalled for, Mr. Hodgman. Mrs. A. Ford, wife of the previous witness, stated she answered a knock at the door of her residence on the afternoon of February 16. "Jack" Fitzmaurice was at the door, his brother being a few feet away. Did not hear any conversation, but saw Harry Fitzmaurice strike her husband a couple of blows. Could not say what her husband's attitude was immediately prior to the assault. The latter was very sudden, and, furthermore, quite unexpected, as defendants were in the habit of coming to the house for motor car accessories. His Honor intimated that he understood plaintiff was not claiming damages for injuries to his reputation. Mr. Hudson answered in the affimative. To Mr. Clarke-Did not hear defendants ask her husband for an apology. Some words were spoken, but she could not say what they were. Her husband was not forced to keep to his room on account of the assault. F. F. Ford, the nine-year-old son of the two previous witnesses, deposed that he heard scuffling, and when defendants were going away he heard Harry Fitzmaurice say, "My word, gave him a b- good doing." Dr. Driscoll, practising at Smithliton, stated that plaintiff consulted him on February 17. He was suffering from pain and hemorrhage of the right eye, and complained of a pain over the heart. He was also suffering from shock. To Mr. Clarke-The injury was an ordinary black eye. Had seen schoolboys with worse injuries. This closed plaintiff's case. Mr. Clarke stated the defence of his clients was that the assault was committed in self-defence. Ford and Fenton were both honorary justices, and the night before the assault performed several discreditable acts, including the felling of a street tree and the cutting of the tyres on a bicycle, which happened to be standing outside one of the Stanley hotels. Probably they thought that because they were Js.P. they could do as they liked. Harry A. Fitzmaurice, one of the defendants, stated that on February 10 his brother "Jack" arrived at Smithton from Stanley between 2 and 3 in the afternoon. After tea time the same afternoon he, his brother, and two men named Grigg and Smith went for a ran in a motor car. They had no intention what ever of committing a breach of the peace when they set out for the run. On arrival at Ford's the car pulled up, and witness went to the door of Ford's residence, being followed by his brother. When Ford appeared witness asked him to apologise for what he had said to his mother at Stanley the previous evening, adding that if Ford did not do so he was no gentleman. Thereupon Ford struck him, and witness started to defend himself. Ford knocked him off the verandah, and than went inside. Witness hit Ford only once. To Mr. Hudson-On starting out to give the car a run, we intended to go nowhere in particular. After leaving Ford's they journeyed towards Irish Town, and when they arrived at Fenton's paddock they met Fenton at his gate, which was about 300 yards from the house. The evidence of plaintiff and Mrs. Ford, that the former fell on his hands and knees after witness hit him, was not true. His brother, who drove the car, followed him on to Ford's verandah, becanse the former knew that an apology was to he demanded. Neither he nor his brother mentioned Fenton's name to Mrs. Ford. When they met, witness and Fenton began to talk about the previous night at Stanley, when Fenton hit him on the chin, and blows were exchanged. "Jack" never left the car at Fenton's. Smith came between witness and Fenton, when the latter threatened to use a bottle. Just as the trouble was over, Mrs. Fenton appeared, and enquired what it was about, and Fenton replied, "Oh! they are only narked, as I beat their father for the council." The evidence of the boy Ford, saying that he gave plaintiff a "good doing," was untrue. C. B. ("Jack") Fitzmaurice, the other defendant, gave evidence, corroborating that of his brother. Under cross-examination by Mr. Crisp, witness stated that he had no idea when starting from Stanley to go to Ford's or Fenton's. L. Grigg said Ford assaulted Harry Fitzmaurice, and the latter retaliated. After further blows the two defendants got into the car, and the four of them drove to Irish Town. Cross-examined by Mr. Hudson-When he saw. the trouble commence he and Smith got into the rear to get a better view of the fight. John J. Smith, barman, employed at Stanley, in the hotel of defendants' father, deposed that he saw Ford assault Harry Fitzmaurice. The fight lasted five or six minutes, and probably ten. He saw three or four blows struck. Ford struck Fitzmaurice first, after which Fitzmaurice responded. J. L. Casey said that about two monfths ago be heard Ford say he would "pull" defendants only for Mrs. Fenton's -(his wife's) sake, and the position he had, to uphold. Cross-examined by Mr. Crisp-Ford made the statment while travelling on the trams between Marrawah and Smithton. Two other men were in the truck at the time. He did not tell either of the defendants after he heard Ford make the remark. G. W. Blake, a lad 15 years of age, said he saw a scuffle on Ford's verandah between Ford and Harry Fitzmuaurice, but did not hear what was said. After Ford went into his residence Harry Fitzmaurice stepped up on the verandah. Mr. Hudson-This is the first witness to tell us that. His Honor-Yes, it is new. - This concluded the evidence, and, it being 5 p.m., the court arose until 10 this morning. A good deal of interest was taken in the proceedings, as the court was crowded throughout the day. Ford's case is not expectedl to finish before the luncheon hour, and then Fenton's will be commenced. The jury for the last-named was selected at 4 p.m. yesterday.
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