THE CARTOON CASE.

Dominion, Volume 4, Issue 1202, 10 August 1911, Page 2

THE CARTOON CASE.

JUDGMENTS OF COURT OF APPEAL. EQUALLY DIVIDEDINTERESTING LEGAL OPINIONS. ON THE LIBEL LAW. Yesterday the Court of Appeal—consisting of Sir Joshua Williams, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Sim—gave judgment in tho case of W. F. Massey v. The New Zealand Times Company, Limited, an appeal from tho judgment of the Supreme Court iu dismissing a motion for a now trial. As the Judges of the Appeal Court wcro equally divided, the.Court made no order. A summary of each of the judgments is given below. At the hearing, Mr. H. D. Bell, K.C., with him Mr. A. Gray and Mr. G. H. Fell, appeared for appellant, and Mr. S. Solomon, K.C., with him ■ Mr. .A. W. Blair, for respondent company. FOR DISMISSAL OF APPEAL. SIR JOSHUA WILLIAMS'S JUDGMENT. AND HIS.BEASONS FOR IT. Sir Jcshua Williams, in tho course of his judgment said:—This is an appeal, from a judgment of the Supreme L-ourt dismissing a motion for a new trial* The grounds of the motion were: (J) That judgment could not be given on tho finding of the jury. (2) That the learned judge misdirected the jury in several particulars'. (3) That the verdict was against the weight of evidence. (4) That the finding of the jury was not a verdict for tho defendant company. (5) That the learned judge admitted improper evidence. As to (1), the finding of the jury that tho cartoon was "not libellous" amounts to a verdict for the defendant. As to (4), the jury found—(a) that the figure in the cartoon represented Mr. Massey; and (b) that they were, of opinion that it was a political cartoon pure and simple, and was not libellous. The judge thereupon in tho presence of the jury directed that the verdict was a verdict in favour of the defendant company, and a verdict was entered accordingly. If, therefore, any possible doubt could have existed as to whether the jury meant to find for the defendant the tacit assent of tho jury to the direction of the learned judge that their verdict was a verdict for the defendant removes that doubt.

The Alleged Misdirection. One of the grounds of misdirection which is objected to is that the learned judge directed tho jury that their special finding was a verdict for the defendant, and that upon such special finding they should give their verdict for the defendant company. This ■■ direction, in my opinion, was absolutely correct. Tho alleged misdirection which was mainly argued before, us was that the learned judgo misdirected the jury in telling them that even if they found that tho plaintiff was represented by the figure hitching the wagon, they might find that the cartoon and words were a mere political skit, and therefore did not attribute personal misconduct to the plaintiff. That 111 fact means that if the jury found that ihe plaintiff was represented by the figure the learned judge was wrong in leaving it. open to tho jury to find that tho imputation alleged in the innuendo was not proved. I find nothing in the learned judgo's direction"frhfrh might lead' the jury to believe that, because the cartoon was a political skit, it therefore did not attribute personal misconduct to tho plaintiff. ■■'.■■

The fifth ground on which a new trial is asked for is that the learned' judge admitted improper 'evidence, viz., evidence of the memory.'of witnesses of reports-of what was said by members of Parliament in a debate'in the House of Representatives on November 30, 1910, and in a debate in the Legislative Council on 1 December 1, 1910. In considering, whether tho evidence objected to is admissible, one has the right to assume that tho jury, when they went into the box, knew nothing whatever of Mr. Masscy or of local, politics, and were a jury of strangers. Any; previous knowledge of the jury of the surrounding circumstances cannot affect the admissibility of evidence. After -reviewing the question at feme length, his Honour said:—lt is difficult, if not impossible, to draw a strict lino as to -whether any particular question standing alone was irrelevant. Generally, I think that everything that took place in. the debates in both Houses'was admissible, though isolated statements made in the course of debate taken by themselves might have no real bearing on the question. Even if it bo the case that one or two questions have been improperly admitted, it cannot be said that there was any reasonable probability that the jury we're influenced by the, admission, or that any substantial wrong or miscarriage of justice had been thereby occasioned in the trial. In that case, even; if some evidence had been improperly' admitted, Rule 277 prohibits the grant,of a new trial. The Weight of Evidence. The really substantial ground upon which a now trirtl-'is moved for is that the verdict was against tho weight of evidence. The principle to bo applied in granting a new trial on the ground that the verdict is against the weight of evidence or against evidence are laid down in the cases of Tho Metropolitan Railway Company v. Wright (11 A.C. 152) and .Tones v. Spencer (77 L.T. 5.10). The Court will not set aside the verdict merely because, if the Court 'had itself to give a verdict, it would have given it the other way. It will not grant a new trial only because it thinks reasonable men ought io have found another verdict. If reasonable men might find the verdict vrlueh has been found, no Court has jurisdiction to disturb a decision of fact which the law has confided to juries and not to Judges. Where the verdict is founded, not upon the truth or otherwise of existing facts, but on a matter of opinion which has to be found by inference from existing facts there is a greater difficulty in the 'Court above setting aside the finding of a jury. It is comparatively easy to'decide whether the evidence proves or disproves a particular fact, but in matters of opinion founded upon inferences from admitted facts 'it is difficult to say that reasonable men could only draw one possible inference.

In considering whether the verdict in the present case is against evidence, it is important to show clearly what the issue was that the jury had to try. Tnc plaintiff in his statement of claim referred to the cartoon, and alleged that it was published concerning himself. The jury found that the figure represented in the cartoon represented the plaintiff. The seventh paragraph of the statement of claim alleges that the defendant meant by the cartoon and the words printed on it that the plaintiff, who was depicted in the cartoon as hitching a wagon, was responsible for the free distribution of the pamphlet mentioned in the statement of claim, or had taken part in the free distribution thereof, and that the plaintiff had been guilty of a mean and despicable act, and was a liar. In order to find far the plaintiff, the jury v;ouUt have to find that no reasonable man who was aware of the surrounding circumstances could attach any other meaning to tho cartoon than that as above alleged. It would not be sufficient for the plaintiff to prove that he was abused by the cartoon, or that the cartoon had some other defamatory meaning. He must show that it had the precise meaning alleged.

The Duty of tho Jury. The plaintiff's case on tho pleading!: and.as it was presented by his counsel at the trial, rested only on the cartoon having the precise meaning attributed .-o it by the innuendo. -It was not the duty of tho jury to find what the meaning of tho cartoon actually was. If they wero not satisfied that the meaning was that alleged by the plaintiff they would' bo justified in finding that they were not satisfied that the cartoon had the meaning alleged, but what it meant exactly they were unable to say. In that case the defendant would have been entitled to a verdict. The cartoon standing by itself "is a cryptogram, and must be explained by a reforeucQ to current event*

In order lo set aside the verdict, it really comes to (his: that this Court must, lie satisfied that the jury were morally bound lo find that tho meaning of tho cartoon was that which tho plaintiff alleged. The. Courts hove always been reluctant iu cases whore there has been a verdict lev the defendant in an action for libel to sel aside the verdict as against evidence. Very few cases can be found in the books 'where it has done so. I do not think the Court lias done 50 in any case where an innuendo was necessary to' explain tho meaning of the alleged libel, and where the jury were entitled to form their own opinion as to whether tho .alleged libel bore the meaning which the. innuendo asserted that it bore. All the cases show that, on a verdict for Ihe defendent. in an action for libel, tho Court will not interfere unless the grounds for interference, bo overwhelmingly strong (per Grove J. in Odgcr v. Mortimer). Whichever way, indeed, 0 verdict goes in an action for libel, the Courts are reluctant to interfere.

Wide Limits of Criticism, The jury have found that the cartoon is a political cartoon pure and simple. I interpret that finding, looking at tho direction of the learned Judge on which it was founded, to mean that it was not proved that tie cartoon iiuputcd to the plaintiff that he had been connected personally with tho distribution of the pamphlet, and that the cartoon was a politioal cartoon, no doubt abusing Mr. Massey and his party, and holding them Up to ridicule, but, within tho wide limits of criticism allowable in tho cases of public men and public matters. I cannot sny that twelve reasonable men might not have taken this view. Where the alleged libel reflects on a political person of' a nolitical party, and whero the meaning of it must be interpreted by the surrounding circumstances, and becomes a matter of opinion, I think a verdict of a jury for the defendant should bo final, unless it clearly appears either that the jury were misled by tho direction of tho' Judge, or that they did not honestly consider the question they had to determine. Tho jury are as well able to decide whether and how far the alleged libel would, in tho opinion of an ordinary man, affect the personal character of the plaintiff as the most learned Judgo or the most acute logician. I think, therefore, that the appeal should be dismissed.

MR, JUSTICE SIM. ALSO FOR DISMISSAL. Mr. Justice Sim, who agreed, that the appeal should be dismissed, said: It was not for tho defendant to establish that tho cartoon did not defame the plaintiff. It was not a question of which side had offered the more plausible explanation of the cartoon. It was for tho plaintiff to convince the jury that the only reasonable interpretation of tho cartoon was that which he sought to put on it. He failed to convince the jury of that,' and the verdict, in my opinion, ought not to bo disturbed. The question of libel or no libel in this case was one peculiarly within the province of the, jury to determine. The alleged libel was contained in an ambiguous cartoon. The suggested defamation was not plain on the face of tho cartoon, but' had to bo pointed out by means of an innuendo. If in such a case as this the Court were to interfere with tho verdict it would bo doing, in my opinion, exactly what tho Privy Council has said it should not do, viz., taking upon itwlf the function which tho law has committed to the jury of looking to the alleged libellous matter as a whole, and determining whether it is published of arid concerning tho plaintiff, and whether it bears the innuendo which the plaintiff seeks to attach to it: Australian Newspaper Co. v. Bennett (189t) A.O. 284,289. „ L „ I think, therefore, that tho appeal should ,bo dismissed.

!N FAVOUR OF A NEW TRIAL. ' JUDGE DENNISTON'S VIEWS. VERDICT AGAINST WEIGHT OF EVIDJSNCU. Mr. Justice Denniston, in the course of his judgment, said: ' I do not think the ground of the admission of improper evidence can be supported. 1 think also that there is nothing to justify the objection as to misdirection. The'really important ground is the averment that tho verdict' is against the weight of evidence. There is np question as to what is required to justify a Court in setting aside a verdict on this ground. It must be satisfied that the verdict impugned is one which no twelve men could reasonably have come to. There is no leal principle that I know of authorising any distinction, on this point, between actions for .slander and any other action. A man's reputation should be at least as valuable to him as his pocket. • His Honour, after reviewing the lacts, proceeded as follows:—It appears to me, therefore, that once it is proved or admitted that tho figure is that pi Mr. Uassey,' and that the pamphlet is that ■ referred to in tho defence, tho averments in that plea establish that, in the words of the innuendo, plaintiff is 'depicted and condemned" as responsible for the free distribution of the pamphlet. It is not, of course, necessary to show that he is alone responsible. The defence is ot course, .not precluded by .that plea from reiving on his general denial of the meaning of tho innuendo-but it is important as showing what is admittedly iho defendants' alternative reading to that made by tho innuendo.

The Man in the Street. Independently of the defendants' own admissions of their plea, I cannot think that any intelligent person, acquainted with the circumstances, without a knowledge of which the cartoon would bo unintelligible,' could put any other meanin-- on it. What would the man in tho street have in his mini when, on tlio morning of December 3, he saw this cartoon 5 He would know that there had been a hot debate in the House immediately before on the subject of tho paiu-pMet-and that the Opposition, or some of its members, had been accused of assisting in circulating it. He womdprobably know or- care little as to whclhei Mr' Mas'cvhad or had not been personally charged, or as to whether such charge if made,'hail or had not been disavowed. But I cnimot kc how he could possibb doubt that, if he identified, as he was intended to identify, the figure, it meant that Mr. Massey was, in addition to whatever elso he was doing, taking part in the distribution of the pamphlets, and that such distribution had been free. Imnressed as I naturally have been with tho rei»!vt of judicial opinion in this case against the view I ain expressing and with tin? strong inclination of the Courts to sustain, in libel actions, whenever possible, tho findings of a jury have earnestly sought to find any other. reasonable 'meaning. I can find no assistance in the address of counsel at tho trial (a newspaper report of which was put in by consent), or in the argument here. There has boon no repudiation of the meaning put on their own plea. The only nnswr has been that of the plea, that it referred to "political" actions. I know of no doctrine or principle which entitles anyone, .either in a newspaper or otherwise, to accuse an individual of conduct personally dishonourable, and to successfully shelter himself on the ground that such conduct occurred in a political transaction. That the spreading cf what Hie defendants' newspaper described as a, printed calumny, and as an act to which Mr Massoy himself would disdain to give countenance, is a personally dishonourab'e act cannot seriously be disputed. It was so put to the jury by his Honour.

A Point Misunderstood

It is in my oninion, upon misunderstanding on 'this' point-reiterated and insisted upon in the final address of counsel for the defence—that tho jury have gone wrong. I think their actual findings point strongly in hhat direction They were told by the learned Judge (after dealing with the identity of tho figure) that tliev had to decide "whether this cartoon imputes to him (Massey) that he has been, despite his disclaimer, connected personally with the distribution of their scurrilous pamphlet. His Honour, of course, does not by these word'- mean, or intend to convey to the inry," moro than they must be satisfied that the cartoon imputed to Mr. Massey individually a share in (he free distribution. Tl "could not have been intended to mean'that if he had individually been ,»o responsible, his action would not bo dishonourable if his doing so was for a poliiical purpose, and as a member of a nolitical party. The jury, instead of finding a general verdict, say, "We are of opinion that this is a political cartoon pure and simple, and is not libellous."

They do not _ay whether thev find that hfl was not connected personally wit!) distributing the pamphlet. They dwell on the fact I hat the cartoon was—using a phrase of his Honour in his-sununiug up— "a political cartoon pure nud simple." That this was intended as a judgment for the defendant is indubitable. But the reasons wore entirely volunteered, and, as I havo said, suggests to my mindfliat they are an echo of the forensic sophistry. A jury is, of course, not bound to believe or act on the evidence of witnesses celled to give their opinion on the meanins the cartoon conveyed to them. But it is not without significance- that in this case Hie jury ignored the evidence on this point of a dozen apparently reputable persons from all ranks of wciety.

I urn of opinion that the verdict is against the weight of evidence, and that the appeal should be allowed and a new trial ordered.

MR. JUSTICE EDWARDS. ~ WHAT THE CARTOON MEANT. Mr. Justice Edwards, who was of tho same opinion as Mr. Justico Dennis-ton, in the course of his judgment said:—the jury found as a fact that the figure in tho cartoon represented tho appellant. It is now admitted, and appears to have substantially been admitted before tho case was left to the jury, that this was tho case. Turning then to the cartoon, the jury most unnecessarily have found in the woTds printed beneath ir—"Hitch your wagon to a lie, Dr. I'indlay's amendment"—that someone was charged with being a liar, and that that someone was a person who was hitching, or might hitch, a wagon to something. Looking' abovo they could not fail to see that the figure which depicted the appellant tras engaged in hitching an ass to a wagon. A lie being impalpable, the cartoonist has depicted an ass in its place, and, to make his meaning unmistakable, has labelled that ass "Ananias," in order to represent tho embodiment of falsity. Proceeding then to the wagon and its contents, the jury should havo .observed that the wagon was labelled "We are tho Party," while the appellant was separately labelled "Their Idea of a Politician." The wagoner, or leader of. the party, is here separated from "the party." Immediately abovo the wagoner's head is a largo bundle marked "Pamphlets Free." Admittedly the cartoon represents the appellant, and the "pamphlets free" represent the scurrilous pamphlet, in the distribution of which the appellant had denied any complicity. Beasts of burden are hitched to wagons for the purpose of transporting the contents of the wagons to which they are hitched. Tho appellant is here represented as hitching his wagon —containing amongst other things a hugo bundle of scurrilous pamphlets marked so as to indicate that tho pamphlets are for free distribution—to a beast which is designed to represent the embodiment of falsity. I Fully Made Out. If this is the moaning of the cartoon— and I can find no other meaning for it —the meaning attributed to it by tho innuendo has been fully made out. As soon as it was ascertained that the- appellant was the person represented in the cartoon, it became impossible for reasonable men to say that he was not the person condemned. Then how, and in respect of what, was he condemned? He* was condemned in the character of a wagoner engaged in the. free distribution of scurrilous pamphlets from a wagon which, amongst its other contents, includes defamation, private calumny, and dead men's characters. The respondents call the acts so portrayed "political action," and say that to impute them to. a politician is not defamatory, and the jury have adopted the same view. In my opinion it is an abuse of language to call the acts so imputed against the appellant "pnlitica!" in any sense. It certainly is defamatory to impute thorn against any person, w'hetJier a politician or not. Taking the cartoon cither piece by pieco or as a whole, it appears to me to be unambiguous, and to bo susceptible of no other meaning than that attributed to it by the nppellant. If any other meaning can' reasonably bo attributed to it, it might be supposed that the ingenuity of the respondents, and of their counsel, would have boen sufficient to enable them to suggest some non-libellous meaning, which would not bo palpably negatived by the cartoon itself.

Interpretation of the Cartoon. ■ The summing up of the learned Judge to the jury shows what Mr. Solomon's suggestion was at the trial. This is what was said: "Mr. Solomon's answer to that is that it is an entire mistake; that tho proper interpretation of the article is that there was a' great deal' of , mudslinging going od |in Parliament and out of Parliament, and that tho Opposition had a hand in 'it, as well as other politicians,'that members of the Opposition, and tho Opposition as an organisation, were not above mud-sling-ing, that the intention of the article merely is to illustrate Dr. Findlay's speech, and point out that what tho Americans call mud-slinging, had regrettably come into the politics of this country." It appears to >n'o to be impossible to' suggest that twelve reasonable men could put this interpretation upon that part of. tho cartoon upon which the appellant's action is founded. In this Court, in answer to a question from the Bench as to whether ho could suggest any reasonable meaning for the cartoon other'than that put upon it by tho appellant, Mr. Solomon said in the first place that it was not for him to suggest what its meaning might be, and that ho relied upon the finding, of tho jury that it was not the meaning attributed to it bv tho appellant. Later in his argument Mr. Solomon said that the cartoon meant what the respondent's leading article of December 1 meant. It does not appear toi me that reasonable men could think that the cartoon was intended, liko the leading article, lo exonerate the appellant from complicity in the distribution of the scurrilous pamphlet. The fact, that the respondents and their counsel have not been able to suggest to the Court anv reasonable meaning of the cartoon which is not libellous goes far to show that no such meaning can be found. hi my opinion there should be a new trial upon this ground. In the view which J take of the point with which I have dealt, I, do not find it necessary to express any opinion fpon tho other grounds upon which the motion for a new trial was based, 1 and I abstain from doing so. FUDGES EQUALLY DIVBDED. WHAT THEN? THE COURT MAKES NO ORDER. Mr. Justice Williams said that by Section SS, sub-Section 2 of the Judicature Act, the judgments equally divided, the judgment appealed lrom was deemed to be affirmed. Hi such a case, tho Court made no order. Ho did not know whether either of the parties wished to speak about costs. In tho Honss of Lords, where there was a similar rule, the practice was not to give costs in cases so decided. Mr. Blair: I am not iamiliar with the practice at all, vour Honour. Of course, tho appellant not having succeeded, the respondent ought to bo entitled to costs. Mr. Justice Edwards: If the old rule, prevailed, appellant would have sue coeded. _

Mr. Justice Williams: How can you expect the learned Judges, who havo Enid that the appeal ought to be allowed, to give costs? . ', , This ended the question of costs, and Air. Bell then asked their Honours to take notice of leave to appeal aud adjourn the motion; Ho would not formally appeal yet. . , . 11 • it Mr. Blair agreed that in the event of the case coin? to the Privy Council, his side would admit that 'pamphlets free, in the cartoon, referred to the Black pamphlet. ________