LIBEL ACTION.

Press, Volume LIV, Issue 16146, 26 February 1918, Page 4

LIBEL ACTION.

I BEATTI AND CO. v. ".TOIIN BULL." | ONE F.MVrFIiXG DAMAGES. A claim for £1000 damages for alleged libel occupied the attention of his Honour Mr Justice Chapman, in tho i Supremo Court yesterday. 'J lie plaintiffs were Boatli and KJo., Ltd., tho well-known local drapery firm, and the defendants Maurice Goldsborough, journalist, of Wellington, Frederick James Dawson, printer, of Wellington, ancl th c John Bull Newspaper Proprietary Co., of Wellington. Mr l'\ Wilding, K.C., with him Mr Ward, appeared for the plaintiff company, Mr S. G. Raymond, K.V.'.. with him Mr Cassidy, for the defendant Goldsborough. and Mr Cuningham for the defendant newspaper company. Tho case was heard before a jury of twelve, of which Mr J. Butierfield was foreman, each counsel exercising his full right of challenge. THE PLAINTIFF'S CLAIM. The statement of claim .set out b.v the plamtilt company was to the effect that Goldsborough had written an article which appeared in the issue of '•John Bull's Register," a Wellington newspaper, of July lljth last. J'liis article, it was claimed, falsely and maliciously misrepresented facts as to thc origin of plaintiff company's capital, »and the nationality of its shareholders. Thc article referred to was as follows: — "BKATH AND CO.. LTD., CHRISTCHJURCH'. "This firm of drapers has been carrying 011 business in New Zealand for many years. On going carefully through the list of shareholders Beath's name does not appear .to us, but the name of Schiess is freely mentioned, as thc following list will show :— Helena Schiess, Herisan 1500 shares. Ulrich Schiess, Herisan 1 5000 shares. Kugcno .Schiess, Herisan 2000 shares. Eugene Robert Schiess, London ... ... 2000 shares. Cecil Olfivier, Christchurch 1000 shares. Mrs Cecil Ollivicr, Christchurch ... 300 shares. The Wickenden Estate... 6.500 shares. Emily D. Lysaaght ... 500 shares. James Mitcnell ••• 2060 shares. Lily Mooscr, Berne ... IoQO shares. '"We cannot find any reference to a placc called Herisan, and the nearest approach to it is Hussen, a village of a commune in Rhenish Prussia, district of Dusseldorf, circle of AlulheJm. on dcr Rhine. Berne, of course, is in Switzerland, and it may be fairly claimed that the Schiess family are German-Swiss." The article proceeded to quote the' opinion of the Swiss correspondent of "Thc Times" as to thc attitude of the Swiss people at the beginning of the war, it being stated that their inclination was decidedly to favour Germany. The article continued : "We understand that a Mr Beath founded the firm of Beath and Co. a score or more years ago. Beath has long since passed the Great Divide. Thc question arises, therefore, who are Beath's, Ltd., and who aro.the Schiesses Schiess is certainly not British. Schiess, in German,' means 'dirt.' The word 'schyster' is derived from it. Beath, however, could have been 'no schyster.' Look at the premises iu Christchurch* and think." The words in "the article, the plaintiff's claim contended, were meant to be understood by the public that no member of the Beath family held shares in the plaintiff company, that the capital of the company was divided into 22,980 shares, of which a largo portion was held by shareholders bearing a German name, and being themselves presumably German, with whom it would be improper and unpatriotic for the public to have commercial dealings. The claim stated that, on July 16th, 1917. tho capital of Beath's was 40,011 shares of £1 each, ancl there appeared on the share register of the company and on the. list of shareholders supplied- to the Registrar of Joint Stock Companies, the names of the following shareholders: — Ordin- Prearv. ference. D. Beath : 1000 900 Mrs M. Beath ... 169: V -- Mrs M. Beath ... 300 50 Catherine Beath ... -iOO 1000 E. R. Schiess,. London 2000 — Eugene Schiess, Melbourne ... 2000 — No person named Schiess, other than the two mentioned, had any shares in the company on July 16th, 1917, and no persons of German nationality at any time held shares in the plaintiff company. Over 25,000 of the shares in the capital of t&e company were held by residents in Canterbury. The defendant Goldsborough, the plaintiffs claimed, knew that the statements made in the article ■ complained of were false, and that he had caused them to be published with express malice, and with the intention of injuring the plaintiff company by deterring people from dealing with it, and causing it los 3 of custom and profit. The plaintiffs claimed that their business had been greatly injured in its credit and reputation; it had lost customers and profit, and its name had beeji brought into public odium and contempt. The plaintiffs, therefore, claimed £1000 damages, and the costs of the action. Mr Wilding outlined the case at considerable length on the lines set out in the statement of claim, and pointed out that the facts had been grossly misrepresented in the article. In fact, the statements made were nothing but a wicked, disparaging lie. EVIDENCE FOR THE PLAINTIFFS. Frederick James Dawson, publisher, of Wellington, said that he had printed the issue of "John Bull's Register" referred to, with the exception of the cover. He had his instructions from Goldsborough, manager of the John Bull Proprietary. The number oi copies printed of that particular issue would be about 10,000. Witness could not say for certain who wrote the article referring to Beath s. He had been under the impression that it was

Goldsborough, who, however, had dcnto;i that he had written it. j To Mr Raymond witness said that there were various contributors to the j columns of the newspaper. ! Alfred E. Ballard, publisher lor (ioij don aud Gotch. Wellington, said that hU tirm had been appointed distributors for New Zealand for "John Bull's Resistor"' in January of last year. As far .-is witness knew Goldsborough had made the arrangements on behaif of the John Bull Proprietary. Charles Ogilvie, director and manager of Beath and Company, Ltd., said I that his company had been in exist - ! eiu-e for nearly (10 years. It- had been founded by the late M r G. L. Beath. Mr Eugene Schiess had come to Australia from Switzerland about 55 years ago, and had there had some dealings with Mr David Beath. and the result | was that be held some shares in Beath ! and Co. when it was turned into a I company. Tn ]!)].} the late Mr James j Mitchell was managing director of the j company. Goldsborough called on Mr | Mitchell early in June, and called several times within the two following months, when / witness was in eharee during Mr Mitchell's absence. His object ivj« to secure an advertisement j front witness for "New Zealand I Truth," for which he wa<s then a enn- | vasser. Witness told him that his instructions then were not to extend the I firm's advertising allotment. and I Goldsborough was given definitely to understand that, he would receive no advertisement. EFFECTS OF THE ARTICLE. Witne.-*> continued that he considorj ed the. article iu ••John Bull" unfair I and untrue, and had a bad effect on j the business. Witness was proceeding I to refer to certain customers who had j been atfected by it, when Mr Raymond | objected ou the grounds that tho evij denee was inadmissible. There was j no claim for special damages. I His Honour field that such evidence could be given only in a general way. I Continuing, witness said that tho article was unfair in various ways. The name "Lvsaght" was spelt "Lysaaght"' to make it appear more Gorman. The names of many New Zealand shareholders had been omitted altogether. The place "Herisan" further did not appear on Beath's shareholders' list at all. Again, the article had inferred that no one of the name of Beath appeared on the .shareholders' list at ail. while it really appeared five or six times, a fact which witness considered had been deliberately withheld. The majority of Beath's customers were ladies, witness continued. Mr Wilding: And how do you think that your lady customers would take this article? Witness-: Well, a lady usually talces what ?s printed as correct. In that case thc result to us would be disastrous. Witness went on to say that when he read the article, and the passage referring to "Schiess'' and "dirt," it made him feel hot. -Mr Wildine: As a matter of fact, your Honour, "Schiess" does not mean "dirt' at all. Nor does the word "schyster" come from "schiess." It is a Gallic word. In response to Mr Raymond, witness said that the business was still going along well, and shares were continually being sold. Mr D. Beath. one of the original partners, was a partner in the firm of Beath, Schiess, and Felstead, of London and Melbourne. In 1906, one thousand shares had been allotted to a Mr Edwin Nef, of St. Gall, Switzerland, who held them for som,e years. Mr Raymond: And do you know that St. Gall is quite close to Lake Constance, in German Switzerand ? Mr Wilding: There is no such thing as German Switzerland. Mr Raymond: Well, the cantons where German is spoken. H is Honour: That is all tho German there is about it. Witness, in further cross-examina-tion, said that he understood that, in 1906 Mr Ulrich A. Schiess, of Herisan, secured 5000 shares, which he held until his death in 1913, when the shares were distributed amongst his family, who still held them. "THE PROMISED BLOWV' W : iliara James Guntripp, a member of thc staff of Beath and Co., said that about May, 1915, he had a conversation one morning Goldsborough, then on the staff of "Truth." The subject of Beath's advertising with "Truth" cropped up, and Goldsborough made some remark that as the firm was not advertising with him he would "show them up." Witness said this practically amounted to blackmail; but Goldsborough said "Not at all. "We can criticise our clicnts, and if Beath and Co. don't carry on business as we want them to, we'll show them up." Witness saw Goldsborough about July 19th' of last year, just after witness had read the article in "John Bull." Witness remarked to him, "Well, 1 see the promised blow has fallen," and Goldsborough replied, "Yes, I said it would." They discussed the matter at some length. Witness remarked on the absence of the name of Beath from tho list of shareholders, and Goldsborough replied that he had thc share list, and so knew more about it than witness. Witness said that Goldsborough had written the article to give the impression that the firm was German, and Goldsborough* replied that he was "prepared to stand by what he had written." W r itness understood him to say that Mrs Beath's name was not on the shareholders' list. THE SCHIESS SHARES. Evidence as to the personnel of the shareholders of Beath and Co., Ltd., was given by Arthur J. Virtue, secretary of the Company, who produced the share list when the firm was formed into a company in 1902. Regarding the history of the Schiess family's connexion with the firm, witness said that there had been two brothers of the name of Schiess, one of them, Mr Eugene Schiess., a partner in the London firm of Beath, Schiess and Co., and the other Mr Ulrich Schiess, was a banker in 'Switzerland. The latter held 5000 of the original shares of the company. 3000 of which were preference and 2000 ordinary. The preference shares, j on his death,, went equally to his two ; daughters, and the ordinary shares to his son. Mr Eugene Schiess took 2000 shares about 1910. The Schiess family therefore held 7000 shares altogether, and had never held 13,000, as set forth in "John Bull." In reply to Mr Raymond, witness said that up to 1907, 9400 shares had been issued to persons other than the founders, of which 1000. belonged to a Mr Edwin Nef. of St. Gall, Switzerland. He, witness understood, was a cousin of the Schiess brothers. In October, 1906, Ulrich Scriess owned 5000 of the 9400. Schiess lived in Herisau, Switzerland. Nef got rid of his shares in June, 1914, to a local resident. Eugene Schiess acquired 500 shares in 1910 and 1000 in 1911. According to the return of October, 1915, the total number of shares other than founders' shares, .was 13,069. The October, 1917, return showed 28,146. Roughly speaking, without founders' shares, there were at present about 30,000 shares issued. BUSINESS MEN'S VIEWS. Andrew Fuller Carev. head of the firm of Carey's, Ltdi, deposed to having read the article, which, he considered, was of a nature calculated to disparage Beath and Co.. and would all®® T PI T prejudicial effect, especisensitivo « P u -i ust now ws ? s ness German question. Withave S d rathei : , lose than his own firm 11 art,c ' e Published about agidirector' aD f K irk Mo "'ley. man-i Ltd.. agreed wUh - Stru there, , previous witness" the °P lnio « «r the J ! and rd iv VPn ' of . tlu - f,rm of Christchurch. Kaj f i c /i.' engineers, of a director of Beath been years. Hr completed Co> for Carey's sentiments agreed with Mr

This closed the case for the plaintiffs. NO EVIDENCE FOR DEFENCE. Mr Raymond said that he would call no evidence, and Mr C.uningham said that he wo,\ild rest It is case on that of Mr Raymond. Air Wilding briefly addressed the jury, stressing the fact that no defence had been offered,-and therefore everything stated in the evidence for the plaintiffs was admitted. Ho urged the jury to award a substantial and adequate sum as damages, a sum such as would act as a deterrent in the future to newspapers of the "John Hull" class. "A HIGH PUBLIC DUTY." For the defence, Air Raymond contended that iu doing what it had done the John Bull Proprietary, Ltd., had performed a high public duty. He commented on the length of time that had elapsed between the publication of the article and the commencement of the present proceedings, purely because the plaintiffs "did not know where they stood." Mr "Wilding interrupted that the delay came from the defence, who wanted a commission to Switzerland m connexion with the matter. Mr Raymond commented at some length on the elaboration by the plaintiffs of their original statement t.i claim in their amendment filed a few days ago. The greater part of the amended claim, he said, the plaintiffs had been ''incubating" for some months, and "shoved into the defendants two or three days before the case came olF.'' Continuing, Air Raymond said that "John Bull's Register;** a paper just a year old, had obviously been founded for the purpose of .informing the public and the authorities of the extent of aliens' holdings in New Zealand, and commenting upon the matter. In these times we were really governed by war regulations. The first duty of a citizen was to ensure the preservation of the State, which was the preservation, of the individual. There was not only the peril of the Germans, but another peril; that of the neutrals, who were, to a large extent, used by the enemy, especially in tie ease ot Switzerland, for various purposes. Referring to the actual article, Mr Raymond said that the one and only thing attributed to the Schiess family was that they were GermanSwiss, and were shareholders in the firm. In that case the article was perfectly fair, comment on a matter of the very highest public interest. Having regard to the jjeril we were in with regard to the Swiss and Swedish, especially the Swiss, neutrals, the wiiole of the article was a perfectly legitimate view to place before the public, especially as the Schiess family's headquarters were in the German cantons of Switzerland. The plaintiffs' witnesses themselves had admitted that in 1910 no less than 6000 shares in the company belonged to two men who lived in Jlerisav.. They were not British subjects, and the whole article was primarily and solely directed against the fact that foreigners should be large shareholders. . Those foreigners were admittedly German-Swiss, coming from close to the shores of Lake Constance. Even to-day our newspapers spoke of our peril from the G6nnan-Swiss. The mines found in Cook Strait, Mr Raymond incidentally remarked, were not placed there by Germans, but by neutrals who had G«rman sympathies. Considering the peril we were in, was not "John Bull's Register," if its views , were bona fide, doing a very consider- j able public good in bringing before the i public such facts as it did? Reviewing ; the plaintiff's case, Mr Raymond con- : tended that the allegation of malice; "had been merely invoked for the pur- , pose of bolstering up a case which was , undeniably weak." Moreover, the "disastrous" results to the firm which might have attended ths publication ot the article had . not eventuated, ihc , paper might or. might not be question-, able in taste and tone, but that was not the question involved. Ibe allegation j was that the plaintiffs considered then , shareholders had been called Germans, which was absolutely not the case. In conclusion, Mr Raymond contended that, after considering all the circumstances. the jury could bring in no 'verdict other than for the defendant. In summing up, his Honour remark- | ed on the serious results which might occur at such times as these if a man called another a German, especially in trade, as trade with the enemy was illegal. His Honour reviewed the case, and submitted many points for decision by the juiy. ONE FARTHING 3> AM AGES. After a retirement of an hour, the iurv returned with a verdict for the plaintiff for id damages. . The question of costs was reserved.

A paragraph in a London paper's "Roll of Honour:—'ln proud grateful memory of 'The Inrce or U Islue Bungalow,' Ahmednagar, India, officers of the 119 th Intently, Indian Army, who all now lie under lue sall . of Mesopotamia. i'hey were lovely -.Hi pleasant in iheir in L death they were not divided..