SLANDER ACTION

Manawatu Herald, Volume XLVI, Issue 2731, 10 May 1924, Page 3

SLANDER ACTION

BALL V. HORNBLOW. CLAIM FOR £I,OOO DAMAGES. VERDICT FOR DEFENDANT WITH COSTS. Palmerston N. May 8. A cass'of more than usual interest was commenced at tlie Supreme Court this morning,’ before Ilis Honour, Sir John Salmond and a jury .'of twelve. . The plaintiff is Krnest Ball, tobacconist, of Fox ton, who is claiming' from John Hnowles Hornblow, journalist, also of Foxton, the sum of £IOOO as damages for alleged slander. Plaintiff’ in his statement of claim set out that, on or about November 16, 1923, the defendant, in the public highway, Wain street, Foxton, falsely and maliciously s]>oke and published of and concerning the plaintiff the following words: “You are a bookmaker and are breaking the law every day,’’ such words meaning that the plaintiff had committed and was committing a criminal offence. He therefore claimed £IOOO damages. Defendant, in his statement of defence, denied that lie ever spoke and published of and concerning the plaintiff the .words complained of or any similar words. He denied, also, that the words complained of had the meaning set out in the claim or that they had any defamatory meaning. Further, defendant stated that if spokenby him the words were true in substance and in'fact. ... Mr T. M. Wilted, of Wellington, with him Mr P. L. Rollings, of Foxton, is appearing for plaintiff, and Mr Cooper for defendant. n COUNSEL’S ADDRESS. Addressing the jury Mr Wilted having referred to the allegations against defendant, impressed upon them the fact that the plea of justification, an alternate defence of defendant, meant that the alleged slander was being persisted in from the time it was first uttered right up to the jury’s verdict. The plea of justification was a serious one inasmuch as it nad to be proved right up to the hilt, it it could not be proved that there was justification then the man who had pleaded justification had to pay for the slandei. Counsel proceeded to deal with the legal position of bookmakers pointing out the serious position plaintiff was placed in by the allegations. He then dealt with the relations that had existed between the parties at Foxton. PLAINTIFF’S EVIDENCE. Plaintiff then gave evidence. He stated that he was formorly a trustee ot tne Druids’ Lodge at Foxton and was a member of the Masonic Lodge there, lie remembered November 16 last. He "as standing in front of tiie Post Unice a Foxton talking to two other - men, John McColl and Richard Parkes, when dotoudant joined the paarty. Mr Wilted: What did delendant do when he approached you! Plaintiff: He said: lou are a bookmaker and are breaking the law e\ei> f day. You ought to be in gaol and you are not a fit person to mix with society. Mr Wilted: Did Mr Hornblow speak quietly or excitedly ? Plaintiff: He was excited. Mr Wilted: And what did you do; did you keep your temper? —Yes. Mr Wilford: What did you say in reply t Plaintiff: i said: ‘Perhaps you, too, are breaking the law every day but have not been found out.” , , , Mr Wilford: What else did defendant He said he would have me put out of the Masonic Lodge and also that I had blackballed his sou. Air Wilford: Have you ever carried on business as a bookmaker Y—No, I have not. In reply to Mr Cooper, plaintiff said his business of tobacconist was now owned by his son and plaintiff drew from him .JSA 10s weekly in wages. For four or five years he had been working for Mr Davidson, of Palmerston . North, and knew that the latter had been convicted of keeping a common gaming house. Witness had worked in Mr Davidson’s gulden and received £3 per week, it was during lus employment there that the house was raided and the police had found _ several betting petitions on him (plaintiff).

VISIT TO RACECOURSE. In reply to further questions plaintiff denied that he went to the races. Mr Cooper; No, because you know you are not ■ allowed on the racecourse. Plaintiff: That is untrue. lie denied that he hud been -standing outside the Foxton racecourse on both days of the. last meeting. He. swore that this statement was true. V , , Further. questioned on the point plaintiff admitted thin oh the first day of the meeting he had stood outside the course for a while and on the second day he went on the course. Air Cooper: Were you there with another man at the time taking the dividends from the totaliaafor through a pair oi lield glasses V —No, there was no other man. Witness denied that he hud ever acted as a bookmaker or as a bookmaker’s agent. At Mr Cooper's request plaintiff wrote “the names of several horses on slips of paper. The names were called out by Air Cooper and plaintiff wrote them down. Original slips on which the names appeared had, plaintiff admitted, been the results of bets made with him by Koore Rangiheuia. Plaintiff then denied that the bets were made through hum He admitted that he was responsible to lloore for the money and if the bets were not successful witness paid out ol his own money. It was not true that he had refused to' pay out more than £5 16s as that was the bookmaker’s limit. Mr Cooper: Why are you bnuging this action, because you want moneyY Plaintiff; 1 want money, of course, hut that is not why I have brought this action. Mr Cooper: Then why have you brought it? His Honour : That is not an admissible question, Mr Cooper, that is a question for the jury. John MoGoll, in evidence, said he was present outside the Post Office at Foxton wheu delendant said to plaintiff : Yuu are nothing but a common bookmaker and you ought to be in gaol. Plaintiff had replied: “I might be breaking the law and so might you, but you have not been found out. Counsel asked witness to repeat his previous statement and he then said that plaintiff’s reply was: You might be breaking the law every day, but you have not been found out. * - His Honour pointed out the conflict between the two statements and witness said the last one was correct. To Mr Cooper: He had no feeling of enmity towards Mr Hornblow. The Court at this stage adjourned for lunch. After tlio luncheon adjournment, Robert Matthew Parkes, oi Foxton, gave evidence that he was present outside the post office on. the day oi the alleged slander. He heard defendant say to plaintiff that he was a bookmaker, a, menace to society and was breaking the law every day. He knew both parties in the action, but was no more friendly with plaintiff than he was with defendant. , , .. David Walker Robertson, storekeeper, oi Foxton, said he remembered defendant entering his office one day and stating .that he had met plaintiff and had had several words with him. Defendant told witness that he had called plaintiff a bookmaker, a menace to society and a man-who should be in gaol. Witness had remonstrated with defendant and-had told him he should not have said such things. To Mr Cooper: He could not - remember the date of the conversation with defendant. . ~ John Ross, secretary of the Masonic Lodge at Foxton. said he had received a letter from plaintiff in connection with tne Ul Mj. el Wilford then read a copy of the letter in court. The writer alleged that he had been insulted by delendant in the street, defendant, he alleged, having called him a bookmaker and a Taw breaker. The writer complained of defendant s conduct towards him and asked that the matter be fully investigated. , , . ~ . Counsel then read defendant s reply to the letter from the lodge-.secretary on the subject of the dispute. Defendant, in k‘ s letter, admitted calling plaintiff a bookmaker which, he alleged, was generally known. CASE FOR DEFENCE.. This concluded the case for plaintiff ana Mr Cooper opened for the defence. Counsel- commented on the fact that, althoug defendant was alleged to have said that plaintiff should -be in gaol, the latter in his letter to the lodge secretary had not A denied the allegations.- The defence claimL. ed that the words: “You are a bookmaker and are breaking the law were substantially correct in substance and in ; fact. On plaintiff”* own evidence the jury, counsel submitted, ppuld,, have no doubt that ite had been carrying on she tnr of book-tag tar yam.

Roore Rangiheuia then gave evidence, lie knew the plaintiff with whom he had been very friendly and with whom he had had betting transactions. Since the plaintiff returned to Fo\< ... r rnm Palmerston North he had had In-:.- with plaintiff. The bets were made somelimes in plaintiff’s shop and sometimes m witness's office. Mr Cooper: Did you have many wins ? Witness: There were more pity outs (him wins. Mr Cooper: Well, when you won who paid you ? —Ball. Mr Cooper: How did lie pay vou ? Witness: Sometimes by cash payment ..ud sometimes by .cheque. When 1 a race 1 made out a cheqii i which 1 gave to Ball. »Mr Cooper: Did you deni direct with Ball or through him with somebody elße ? Witness: I dealt with Ball direct. In reply to further questions witness said he had always understood that plaintiff was representing Davidson, lie had also had bets with plaintiff’s son Darcy. On one occasion he had a bet with the son on a horse named Black Cruiser, running at the Taumarunui meeting. He won and plaintiff paid witness his winnings. Mr Wilted then cross-examined witness at length. Mr Wilford: You were Ball’s best pal until about- 12 months ago were you not ? —Yes. Mr Wilted: So friendly in fact that both of you went lo a bowling match at Wanganui, one paying the motor car expenses and the other the board and residence.—Yes, I remember that. Mr Wilford:, You were bosom pals in fact ? —Yes. - Mr Wilford: Very well, then. . Why have you come forward to give evidence against your late pal ? Now, have you been promised a reward by defendant for giving evidence against the plaintiff f Certainly not. Mr Wilford: You swear that on oath i y es Counsel then confronted witness with a man named Richard Coley. Mr Wilted (to« witness): Do you know this man Y (indicating Coley). Witness: Yes. Coley then withdrew from the Court and Mr Wilford continued his cross-exam-ination. Mr Wilford: Now, did you attempt to get Coley to make a bet with Ball at the instigation of defendant so that the evidence could be used against the plaintiff. Air Wilted; Were you not promised the mastership oi the Masonio Lodge if you would give evidence against plaintiff. Certainly not. Mr Wilford: Well, then will you tell the Court why you have come forward to give evidence against your late pal. Witness: The whole affair was purely a Alasomc matter; a lodge trouble, and all ulong t had hoped to be able to induce Bali to “cry off’’ this action. 1 tried to do this inrough three different people. Replying Lo Mr. Cooper, witness said he was an ardent Freemason and wanted to keep lodge matteru out oi (Joint il possible, lie was not prepared vio come into Court and perjure himself for the sake of being made the master of the lodge as suggested by illinium's counsel. Richard Allen Easfon. A. Ueasemau and Kenneth Fusion, all of Foxton. gave evi donee, in which they slated that they had had betting transactions with plaintiff and his son. Richard liaydock, a Uaxworker, stated that on the second day of the Fox ton race meeting he saw plaintiff on tiie roadway near Uie course. Detective-Sergeant tjuuke detailed Uie raid on Davidson’s house in Falineralon North by the police, which was raided as u common gaming house. Plaintiff was on the premises at the tune hut witness hud never known him to be employed by Davidsmi as a gardener, as ho had stated. This concluded the case for file defence. Air Cooper then addiessed the jury. It was the business of carrying on bookmaking he said, that had been decreed illegal 'by Statute law. Anybody who accused another of carrying oflV the iniokmuking business, if file allegation were untrue, was guilty oi slander and the words were actionable, but if the words of such an accusation were true then they were not actionable. Counsel commented ou the plaintiff's statement that ins sole source of income was £5 10s weekly. ‘‘Now, gentlemen of the jury,” continued Air Cooper, “are you going to believe that? Plaintiff has a wife and three hoys, two of whom are at the Foxton’ school and one son at tile Feilding High School, his fees being £l6 per quarter. There you have nearly £1 per week accounted for which leaves him £2 10s weekly. Ou. .that sum he employs leading counsel like Mr Wilford and another counsel. Are you going lo accept that story ? Does everything not point to the fact that plaintiff’ has another source of income X That other source of income, I submit, is betting.” Mr Cooper then traversed the evidence at some length and concluded by asking the jury to find thenverdict only on the evidence Mr Wilford opened by drawing the attention of the jury to the fact ibut defendant had not been called. He submitted that the whole bearing of the defendant in the case had been to create a suspicious atmosphere in the absence of proof that plaintiff was a bookmaker. This, he declared, had been done to create an element oi assumption that plaintiff was a bookmaker. He exhorted the jury to consider, wheu they retired, what evidence had been adduced to prove the allegations of bookmaking. “Why,” he said, “you could put all the evidence in proof of it on a postage stamp.” The charge of bookmaking had not been proved. He added that he had had 32 years’ experience of the courts and he wanted to say to the jury: “Suspect, always suspect a number of witnesses who agree in every detail, as has been the case in this action.” Counsel concluded by saying there was not one tittle of evidence to show that plaintiff was a bookmaker and he asked for a verdict in his favour.

HIS HONOUR SUMS UP. His Honour then summed up. He dealt firstly with the law governing libel and slander. The latter was not often the basis of an action, because it was based on defamatory statements by word of mouth. In most cases of slander there had to be proof of damage—loss of property or business as a result of the slander. In those cases where an accusation was made of the perpetration of a crime no proof of damage was necessary-’ and the present case came under that' category, as plaintiff had been accused of having carried on the business of a bookmaker which the Gaming Act defined as an offence. His Honour then reviewed the evidence at length/and the jury retired at 5.20 p.m. VERDICT FOB DEFENDANT. After an absence of 30 minutes, the jury returned and gave a verdict for defendant. His Honour entered judgment accordingly with costs. x[WE desire to thank our Palmerston N- evening eogtemporary for the above report, which provides a suceint account of the proceedings although much of the crossexamination is eliminated. Our object in abstaining from providing an original report needs no explanation. —Ed. H.]