ALLEGED SLANDER.

Manawatu Herald, Volume XLIII, Issue 2315, 13 August 1921, Page 2

ALLEGED SLANDER.

WHIBLEY v. COLEY

NO EVIDENCE FOR. DEFENCE CALLED.

VERDICT FOE DEFENDANT,

The greater part of the afternoon at the Supreme Court yesterday was taken up with the case in which Crank Daniel Whibley (Mr A. M.

Ongley) proceeded- against George Clark Coley (Mr H. R. Cooper) for the sum of £6OO as damages for alleged slander. . Both parties are well-known citizens of Foxton. and are members of the Foxton Borough Council. The slander attributed by plaintiff to defendant was alleged to have been made in’connection with the auditing of the books of the Druids’ Lodge at Foxton by plaintiff, who at that time was carrying out the duties of auditor under appointment by the Grand Lodge. Mr Ongley first called John Knowles Hornblow, editor of the "Manawatu Herald” at Foxton. Witness stated lie was not a member of the Druids’ Lodge. Coley had spoken to witness about matters in connection with the Lodge in witness’s office early in July. Coley had asked witness if he had been to the meeting of Druids the previous night, and told him that there was going to be a great sensation. Defendant, said he had been in a hotel with Mr Grant, the Grand Secre-

tary of the Druids’ Lodge, the day before, and that Grant Jiad given him certain inside information in reference to Whibley and Martin in connection with the funds of the Lodge. Coley

had said “had I or any member of my family done what they have done, we would have been in gaol. The rest of the Borough Councillors (of which Whibley and Martin wore members) should resign rather than sit with them,” Coley went on to say that the police should take the matter up. Witness told him it was not a matter the paper could deal with, but if Whibley and Martin bad been guilty of taking the Lodge funds, the Lodge should deal with it. Coley had hern in the office on several occasions after that. On one subsequent occasion Coley had.stated lie had taken legal advice in the matter. Rome time later after a Borough Council meeting, Coley seemed to be annoyed at something which had happened at the Borough Council meeting- the previous night. Witness told Foley he thought it foolish of him, considering the state of his health, to trouble about such things. Coley said this sort of thing was life to him, and that he was out to smash Martin and Whibley. The same night over the telephone, Coley had rung witness up and expressed annoyance at the report of the Council meeting. Colo> had said the report was not fair, as certain statements he (Coley) had made at the meeting were not 'recorded. Coley, had explained what they were. Coley said witness had reported everything Whibley had said, and had not reported what defendant had said, and that witness was shielding Martin and Whibley in thp,Druids’ business. Witness replied that in that case it did not make any difference what Whibley had said, but Whibley bad been quite impersonal. Seeing what Coley had said, witness told him lie would communicate with Whibley and inform him of what he had said in regard to the Druids’ matter. Coley said. “Yes, you can do so.”

To Mr Cooper: lie had known Mr Coley for many years. Coley had been a public man. a member of the Borough Council and the School Committee at Foxton. Coley had always been honest and straightforward Whibley had been with Witness l’oi some years as a reporter. Witness had always held a high opinion of Whibley. and it had nut been altered by anything Coley had said. Wliibkg held several important positions in Foxton. Both Whibley and Martin were Borough Councillors, and had both been connected with the- Druids' Lodge. Martin was secretary and Whibley was auditor for many years. He had not heard a great deal of rumour in Foxton about the books of the Druids’ Lodge not being in order. Witness could not say if Coley liadcome in on July C to sign cheques in connection with the school committee, of which witness was chairman. Later he had mentioned both Wliibley’s and Martin’s names. He believed their names were mentioned after the conversation about Grant. Martin’s and Whibley’s names were bracketed by Coley in connection with the shortage of funds. It Coley did not include Whibley in the charge of having taken Lodge funds expressly, he did it by inference. There wasAio other inference to be taken from Coley's statement.

Mi- Cooper: Are you unable to swear that Coley directly stated that Whibley was implicated in the shortage of the Druids’ funds? Witness: Yes, that, is so.

Continuing, witness said that the statement made by Coley that he was out to smash Whiblcy and Martin was in connection Avith Iho Druids’ business.

To Mr Ongley: Coley had not mentioned' anyone else’s name but Whiblcy’s and Martin’s in connection with the Druids’ Lodge shortage ol" funds. Plaintiff, in evidence, stated he had been auditor of the Druids’ Lodge, appointed by the Grand Lodge. There had been previous trouble between Coley and himself in 1915, when witness took action against Coley for assault. This was in reference to an article referring to the senior councillor oir the Borough Council, appearing in the "Manuwatu Herald." Coley had taken exception" to the 'article, which referred lo Mr Chrystal as the senior councilloi*. Outside the Council Chambers, Wliibley had remarked that Chrystal was tire oldest councillor. whereupon Coley had grabbed him by the throat. Later witness had taken an action for assault against Coley. To Air Cooper: As auditor of the Druids’ Lodge, he audited the books every six months. He made no report to the Grand Lodge. He had been auditor for six or seven years. Witness checked the books, while Martin was secretary. Witness had never certified that Wliibley and Martin were financial members of the Lodge. He did not have to do so. Mr Ongley objected at this stage that justification had not been pleaded by the defendant, and that therefore cross-examination along these lines was not permissible. His Honour upheld Mr Onglev’s objection in this connection, holding that general rule was- that if the defendant wished to justify a statement, justification must be pleaded. By His Honour’s direction the jury retired while Mr Cooper argued this point

Mr Cooper submitted that the whole of the circumstances of the case should go before the jury. He contended ho was entitled to bring out evidence of the truth of the statement that there was a shortage in the funds.

His Honour refused to concede the point, whereupon Mr Cooper made application for an amendment of the defence to include justification. Mr Ongley objected that it was too late in the case to do so. „ : - His Honour then adjourned the case till this morning to give both counsel an opportunity of arguing this point,

THIS MORNING’S PBO-

CEEDINGS

On the previous day of the hearing, Mr Ongley objected that justification had not been pleaded by the defendant, and that therefore Mr Cooper could not cross-examine along these lines. His Honour upheld Mr Ongley on this point. Mr Coop-

er brought about the adjournment, for legal argument, by making application for an amendment of the defence to include justification. lie claimed- to be entitled to bring out the evidence of the truth of the statement tliat there was a shortage in the funds. Legal argument on tho point as to whether the amendment could be made was proceeded with this morning.

Mr Cooper intimated that he would withdraw the application for the amendment to include justification, and would simply rely on the original statement of defence. Continuing under cross-examina-tion plaintiff said he had telephoned Coley, telling In ill he had been making .statements to the effect that he (Whibley) should be in gaol. Plaintiff asked him to come and see him, but Coley said he did not know anything about witness’ troubles, and rang off in his ear. Witness admitted having accused Coley of slander in Whyte's Hotel, and set up a claim for £3OO, which had been withdrawn. Witness claimed he had given defendant every opportunity to offer explanations. If Coley’s statement to Mr Hornblow had not been contradicted it might have'in-

jured witness. To Mr Ongley: Witness did not know whether the alleged slanderous statements had gone further than to Mr Hornblow.

William Bauckham, storekeeper, Foxton, said that defendant said to him, on Monday, or Tuesday last, “If you told me anything in confidence you would not expect jne to report it.” Coley then said “That is the cause of my grievance (or trouble) with Hornblow.” This closed the case for plaintiffs.

NON-SUIT REFUSED.

Mr Cooper moved for a non-suit. Plaintiff, he said, had not proved that defendant had used the words set out in the statement of claim or any similar words. Defendant had not implicated Whibley in an act of dishonesty. The words in the statement of claim were: “If I, or any member of my family, had done what these men have done we should have been in gaol.” Up to the tirtio oj: the alleged statement Whibley’s name had not been mentioned. Air Hornblow had been unable to swear what was implied by those words. Hornblow was unable to quote any statement of Coley’s in which Whibley’s name was used from which to draw an inference. Defendant could not. be called upon to pay damages for an erroneous inference drawn bv Mr Hornblow. Unless the plaintiff could prove from Mr Hornblow the words from which the latter drew the inference, then Mr Whibley had not made out his ease. The jury could not find that, defendant had used any words implying that Whibley committed a> crime, and unless the proof went so far as that there was no ease to go-' before a jury. Mr Ongley submitted the whole matter .should go before the jury. As to whether the statement was intended to hit the plaintiff should be decided by the jury. Ilis Honour said lie could nob grant a non-suit; there, was some slight evidence implicating Whibley in the matter, and the jury would have to decide whether the words were actually aimed at Whibley. Mr Cooper asked his Honour to reserve the point so as he (counsel) could move, if desired, at a later stage. Ilis Honour refused the non-suit, but allowed Mr Cooper leave to move, as requested. No evidence was called for the defence.

Mr Ongley addressed the jury at length. The whole question to decide was whether the statements of defendant had been published. Mr llornblow had given I hem a very detailed account of all that was said to him b.v Cole.v. Coley made no attempt to deny the statements from the witness-box. Coley was out to injure plaintiff, and had cruelly and maliciously made the statement that plaintiff should he in gaol.

Addressing the jury, Mr Cooper said the claim was brought about for one of two reasons only. One was to extract from the pocket of Mr Coley a few pounds to tide him over the present linancial stringency; or that plaintiff was a very thin-skinned man, especially for a borough coimcillo) —and could not stand anything of the slightest nature being made against him. Counsel claimed that Wliibley had not been implicated by Coley. He pointed out that plaintiff’s own witnesses had proved that Wliibley had nor, suffered the slightest injury. Because Coley might have said something about the funds being short it did not necessarily impute that Wliibley was responsible.

His Honour reviewed the evidence at considerable length, and directed the'jury on the law of slander. He pointed out that while the plaintiff might not have suffered any pecuniary loss he was justly entitled to seek vindication of his character. The jury would'have to decide whether the words set out in the claim, or words in an equivalent form without substantial variance, were used bv the defendant.

VERDICT FOR DEFENDANT,

After a retirement of 15 minutes, the jury returned a verdict for defendant. Judgment was accordingly entered. Mr Cooper asked for costs on the highest scale. His Honour reserved his decision, as to the scale of costs until Monday. Mr Cooper claimed he was entitled to costs on the full claim; a portion of the claim had been discontinued.