Wunder v Hospitals Trust (1940) Ltd

• Jurisdiction: Ireland
• Judge: (Haugh J. and Walsh J.,Ó Dálaigh C.J.
• Judgment Date: 11 April 1967
• Neutral Citation: 1966 WJSC-SC 369
• Docket Number: (71–1966),1967/No.242P.
• Court: Supreme Court
• Date: 11 April 1967

Wunder v. Hospitals Trust (1940) Ltd

WUNDER v. HOSPITALS TRUST (1940) LTD.

1966 WJSC-SC 369

(71–1966)

THE SUPREME COURT

1 Judgment delivered by the Chief Justice on 24th January, 1967(Haugh J. and Walsh J. concurring).

(Haugh J. and Walsh J.

2 This is an appeal against an order of Henchy J. dated 17th June, 1966 that the plaintiff's action be dismissed on the ground that the proceedings are frivolous and vexatious.

3 The plaintiff's claim is for negligence and refusal on the part of the defendant to pay on a winning sweep ticket No. XN 05307 (Cambridgeshire 1950). The plaintiff avers:-

4 "The Plaintiff purchased the above winning ticket XN 05307 from Agents Mr. Stark and Mrs. Lewis Jacobus in Mr. Stark's house, in the presence of another Agent.

5 The Agents received their commission on the above winning ticket but the Plaintiff did not receive his winnings from the above winning ticket."

6 The defendants did not file a defence in due time, and thereupon the plaintiff moved for judgment in default of defence.

7 The defendants countered with the motion to dismiss the proceedings on the ground that they were frivolous and vexatious.

8 In support of the motion the solicitor for defendants exhibited certain documents and referred to a number of other actions which the plaintiff brought against the defendants in respect of sweep tickets.

9 The plaintiff says he purchased the ticket, the subject of these proceedings from a Mr. Stark of 2180 Bolton Street, New York, in Mr. Stark's house and that he (the plaintiff) later destroyed the ticket, together with other tickets, at Wynn's Hotel, Dublin, in the year 1962. The plaintiff purports to explain why he did not include this claim in one or other of the five actions he earlier brought by saying that he forgot to do so.

10 The defendants from their records have produced ticket XN 05307 and the corresponding counterfoil. The counterfoil bears the following name and address of the subscriber:- Louis Jacobus, 264 Grove Avenue, Verona, N.Y. and the nom-de-plume "Lucky Joe".

11 On the back of the counterfoil is a place for the name of the seller of the ticket. This is filled up in pencil. The name appears to be Kirsch and the address Verona.

12 Further, the defendants also produce a letter dated 29th November, 1950 written by the First National Bank of Cedar Grove, New Jersey and addressed to Mr. C. J. Molloy, 39 Church Street, Dublin, Ireland, enclosing ticket No. XN 05307 together with the declaration of ownership and an order for payment of £25,000 payable to the bank as agent. The declaration of ownership enclosed is signed by Louis Jacobus who gives the same address as on the counterfoil. He also writes his name in block capitals; and a comparison with the name in block capitals on the counterfoil leaves little room for doubt that they are written by the same hand. We have also produced to us Mr. Jacobus's acknowledgment of the receipt of the prize money dated December 8, 1950.

13 These documents can leave the Court in little doubt that the plaintiff's assertions with regard to ticket XN 05307 are shown to be groundless.

14 This, however, would not of itself be a sufficient reason for dismissing or staying the proceedings as frivolous and vexatious.

Wunder v. Hospitals Trust (1940) Ltd

___________ v. HOSPITALS TRUST (1940) Ltd.

1966 WJSC-SC 371

1967/No.242P.

(14–1967)

THE SUPREME COURT

1 Judgment of the CourtÓ Dálaigh C.J.

Ó Dálaigh C.J.

2 This is an appeal against an order of Murnaghan J. dated 6th February, ordering that no further proceedings should be taken in this action in the High Court without leave of that Court being first obtained and that if any such proceeding be taken in the action without such leave being first obtained the defendants should not be required to appear or take any steps in relation thereto and that such proceedings so taken should be treated as void and of no effect.

3 Mr. Justice Murnaghan's order was made pursuant to a notice of motion dated 1st February, 1967, brought by the defendants, for an order that the action be stayed or dismissed on the grounds that it is frivolous and vexatious, or, alternatively, for an order that the summons therein should be struck out as disclosing no reasonable cause of action and for an order that the plaintiff be restrained from instituting proceedings against the defendants without the leave of the court.

4 The general endorsement of claim on the plaintiff's summons is in the following terms:-

5 "THE PLAINTIFF'S CLAIM IS for negligence and refusal on the part of the Defendant to pay on one winning Sweep Ticket.

CAMBRIDGESHIRE 1950:	Ticket No. XZ 28874
	Nom de Plume 46566

6 The Plaintiff purchased the above winning ticket XZ 28874 from Agents Mr. Stark, Mr. Springer, Mr. Michael Haley and Steve Kotos.

7 The Agents received their commission on the above winning ticket but the Plaintiff did not receive his winnings from the above winning ticket.

8 The above numbered winning ticket was published in the Hospitals” Trust (1940) Limited Sweepstake Printed Report on all winning tickets as in the same way as the winning tickets were published in the New York Journal American.

9 The Plaintiff sues for refusal by the Defendant to pay on the said winning ticket.

WITNESS IN THIS CASE:	The Secretary, Hospitals Trust
	(1940) Limited.
	Solicitor George McGrath,
	Hospitals” Trust (1940) Limited
	Mr. Byrne, Hospitals” Trust
	(1940) Limited.
	Craig, Gardiner & Co.,
	Accountants.
	Dr. Angela Hayes.
	Mrs. M. Molloy.

10 The Agents who sold the Plaintiff the ticket are ready to swear except Mr. Steve Kotos (deceased) on behalf of the Plaintiff an Affidavit that they sold the Plaintiff winning ticket. The Agents have already been in touch with Hospitals” Trust (1940) Limited with regard to the said winning ticket.

11 The Agent wishes the Court to establish a commissioner for New York to question them to get them sweared that Mr. Issac Wunder bought from them the winning ticket. Mr. Stark registered number from Hospitals” Trust (1940) Limited is 3434."

12 In support of their motion the defendants filed an affidavit sworn on their behalf by their solicitor, Mr. George C. McGrath. Mr. McGrath, at paragraph 5, deposes, inter alia, as follows:-

13 a "(b) The counterfoil for the ticket numbered XZ 28874referred to in this Summons herein was drawn for the horse which finished first in the Cambridgeshire 1950 but the Plaintiff was not the holder of the said ticket and his name was not on the...