ACTION FOR SLANDER.

Manawatu Herald, Volume XLVII, Issue 2975, 15 December 1925, Page 3

ACTION FOR SLANDER.

GOLDER V. BROOKS.

PLAINTIFF AWARDED £25 DAMAGES.

At the Palmerston North session of the Supreme Court yesterday, "before His Honour Mr. Justice Ostler, the slander action Golder v. Brooks was heard. The hearing was before the judge alone. Mr A. M. Ongley apepared for the plaintiff and Mr. H. R. Cooper for the defendant.

The statement of. claim put forward that plaintiff was a jeweller residing in Foxton, and for some years past had been conductor and bandmaster of “The Foxton Silver Band.” Defendant was a member of the band. On or about August 29, 1925, at Main Street in Foxton, defendant falsely and maliciously spoke and published of and concerning plaintiff, to one Jack Madden, of Foxton, a member of the band the following words: “I have enough papers in my pocket to put Johnnie Golder in gaol.” Defendant thereby meant that plaintiff had been guilty of a crime punishable by imprisonment, and that defendant had in his possession sufficient evidence to prove the commission of such crime. On or about September 10, at the bandroom, defendant repeated the statement to James Aitchison and Joseph Hofmann, wherefore plaintiff claimed £250 damages on each of the two causes of action.

The defence was a denial that the words were ever used, or that if used, they were not defamatory. Jack W. Madden, grocer’s assistant, of Foxton was the first witness called and in evidence stated that he had been secretary of the Band for 18 months prior to August last. Knew Golder and all parties concerned. An effort was made on behalf of the band funds in September last year when £BOO was raised. Plaintiff was organiser for a while until he handed the position over to Miss Healey. Subsequently a meeting of the band was held and several members were dismissed for missing six consecutive practices. Defendant was one of the men so dismissed. The dismissed members held a meeting the same evening. A week or so later witness resigned the position of secretary but did not resign from the Band. In August witness met defendant in Main Street one evening in front of Heath’s shop. Discussed band matters for a while when defendant said he had enough papers in his possession to put Golder in gaol. Told witness he should resign from the band because he did not wont to see him led by men like Golder and Aitchison. Witness did not know what the trouble was but thought Golder had done something wrong. Did not ask what the papers were. On the 10th September witness attended a band practice. At “smoko” witness saw defendant talking to Aitchison and Hoffman. Witness walked over to the group and heard Brooks repeat the statement complained of. Aitchison had a letter in his hand.

Cross-examined by Mr. Cooper witness said he worked in Mr D. W. Robertson’s shop. Mr. Cooper: He is also interested in the band isn’t he? —Yes.

And a good many informal meetings have been held in his shop haven’t they?’—No they were formal meetings. Mr. Robertson was chairman of a heated and lengthy meeting of the band wasn’t he < —Yes.

Continuing, witness said that before the trouble the band was an incorporated Society which made Golder and Aitehison conductor and chairman respectively for life. There had been no annual meetings ‘of the band held for years and the band was practically run by Aitehi son and Golder.

Mr. Cooper here produced a newspaper advertisement calling a meeting of the band, and signed as by the secretary. To witness: “Did you authorise that?” —I was away at the time. “Had you any instructions from the registrar of incorporated societies?”' —No, but I understood Golded had had instructions as he had been in Wellington for a week. I was present at the meeting. The report ; of the meeting as appeared in the Herald and produced in court, was a fair one. Meetings were not held under circumstances that prevented other members from attending. The door was not locked on them. No rules were drawn up at the time. Did not hear it said that no more practices were to be held till after the new rules came back. The meeting times were very irregular. Knew plaintiff threatened to sue Aitehison. Witness never said anything to cause Brooks to make the statement he did. Defendant said that Aitehison and Golder were influencing witness. Wi tnes s only mentioned to defendant that he had resigned from the secretaryship. Witness made the statement to Golder about the matter about three weeks later. Aitehison was making a statement before Mr. Robertson in Mr. Robertson’s shop and witness said “I heard that too.” Had never asked defendant what Golder had done but believed he had done something to justify the remark.

Mr. Cooper: Did you say in Robertson’s shop: “I’ll state I heard him tell Fred Ebbett the same thing 'on the street.”—-No, I said he was in hearing distance and may have heard the remark. Cohtiuingj witness said that all the bandsmen were in the practice room on September 10th. Aitehison had a piece of letter in his hand which witness tried to read but could not make English of it. No-

body asked Brooks any questions at the time. Witness heard Golder remark that he was going to sue Aitchison. “TO BRING PEACE AND HARMONY.”

James C. Aitchison, flaxmiller, of Foxton, stated that he was unfortunately one of the founders of the band in 1922. At that time he was made chairman, retaining office until August last. Witness called the meeting referred to as the secretary was away. The trouble was that members had not been attending practices. Witness resigned the chairmanship so as to bring peace and harmony. On September 10th witness was showing three letters to Mr Hoffman in the bandroom when defendant arrived on the scene. Plaintiff was going to sue somebody but did not know who it was. Witness remarked that his wife was very upset because plaintiff had threatened to sue him. Defendant remarked. * “Don’t you worry. He’ll do no suing. I have sufficient evidence to put Golder in gaol.” Witness had a row with plaintiff and told defendant of the affair at the following practice night, when defendant said: “I have only some of the papers. Osborne has the others.”

Mr. Cooper: Both you and Golder have had to resign from the band as a result of the opposition?— Yes.

Did you seek office at the fresh election? —No, Mr. Golder stood as conductor but was not elected. He was very sore about the matter. Golder talked about, suing somebody and thought he would sue me. He was anxious to get, litigation somehow"? —Undoubtedly. Continuing, witness said he assisted Golder in no way at all to bring about the action . “We were bitter enemies then,” ho said. Witness said he told plaintiff he had to prove himself before he could be a friend of his again. Never asked Brooks what the trouble was. Had no idea what was in defendant’s head at the time. Witness was worried about certain papers Golder had in his possession at the time. Mr. Cooper: What did that have to do with any accusation of crime against Golder?

Witness said that he and Golder signed various papers in eonenction with the purchase of instruments. Some of these instruments suited and some did not. The papers were not destroyed and witness thought some of these papers might have been used with his signature on them

Mr. Cooper: Where is crime connected with that?

His Honour: Where they promisory notes —No, agreements prior to the final agreement being drawn up. There was nothing in the papers that could be detrimentally used. His Honour: Who handled the carnival money? —Trustees D. W. Robertson, J. N. Rider and T. W. Winstanley.

Continuing, witness said the letter he had in the bandroom was only portion of a letter that Golder had been writing to Beggs and which witness had snatched from him.

lie-examined, witness stated that the instruments cost £4OO. Goldey provided £IOO as a deposit out of his own money and witness and Golder signed the bailment on the rest. Bought the instruments in his own name, and was sufficiently worried about the business to visit the retailers of the instruments when the trouble arose. There was trouble about a missing cornet but one was found in plaintiff’s yard. John J. Crowe, shop assistant, Foxton, stated he intended to become a bandsman and attended a meeting in September. lie accompanied Madden to the meeting. Defendant was present talking to Messrs Hoffman and Aitehison. He heard defendant make the statement complained of. To Mr. Cooper: Worked in Robertson’s shop with Madden who proposed witness as a member. Witness was not elected a member of the band. Sat with Madden during the practice. The next day mentioned the matter to Madden who said he had heard defendant make the statement complained of. Witness would have tendered his resignation if he had been a band member, after hearing defendant make such a statement. It was not nice as coming from one bandsman about another.

Joseph Hoffman, undertaker and builder, of Foxton, stated he was also a band member. On 10th September, witness was in attendance at the band practice. Defendant was talking to Aitehison and made some remark about some papers but witness did not hear what is was. On the following Saturday night witness was speaking to defendant on the street when defendant made the statement complained of. Witness tried to straighten out the trouble but later decided to give up the band as he did not like trouble.

To Mi’. Cooper, witness said that it was not altogether the statement that made him reach that decision. Never heard the statement made in the bandroom.

This concluded the evidence for the plaintiff. CASE FOR DEFENCE. Mr.. Cooper, in addressing the Bench said thaj his client denied that he had ever made the statement alleged. Never at any time had defendant any idea of dishonesty on the part of plaintiff. Defendant was one who took a strong exception to Golder’s holding the position of permanent conductor. If defendant had made the statement alleged, it was remarkable that nobody had asked him what he meant by it.

•His Honour (to Mr Ongley) : “Did you not say in opening your ca'-se that defendant was given an opportunity to apoligise?” Mr', Ongley: “After the issue of the writ.” Mr. Cooper, in continuing, said that it was a question of whether plaintiff was suffering from delusions. Defendant in evidence stated that he was one of the band members who were supposed to be dismissed. Witness, with others, was dissatisfied with the way in which the band was being conducted. There had been no annual meeting between November 1922 to March 16th 1925. Witness, with others, knew nothing of certain band practices and in consequence was unable to attend. Was the only man in the band up to the time of the

rouble who had attended all meet-

ings. It was decided to draw up new rules and elect new officers. The old rules were rescinded and new ones drawn up and it was decided to have no more practices un-

it new rules were returned from the

Registrar. Denied using the words alleged. Had no recollection of speaking to Madden on the night referred to, but may have. Hoffman denied knowing anything about the matter when witness went to him on rc'vivig the writ. Was sur-

prised to see him there that day. Practically the whole town was go-

ing to be sued by Colder. One night he told witness he was going to sue somebody. Witness said lie had enough evidence to put a stop to Golder’s suing. Colder said: “Give me the names of your witnesses and I*ll sue Aitchison.” Colder came to witness a few days before he received the writ and told him what Aitchison said he had said. A itness said “Idid not say that. ’ Colder then asked for the names of witness’s witnesses. Colder nevci

asked witness for an apology until after the issue of the writ. Since then, however, plaintiff saw witness four times, but witness referred plaintiff to his solicitor and told him he had never made the statements alleged and therefore would not apologise. To Mr. Ongley: Witness was very annoyed at being dismissed from the band. The dismissed men kept on in the bandroom after being dismissed and held a meeting. It was decided that two members should go to Wellington to inquire into the property of the band. Previous to that, a balance-sheet was submitted to the Board. The delegates went to Wellington to get the numbers of the instruments. The evidence witness relied on to stop plaintiff suing was the names of different people who Holder had said he was going to sue. He had no papers which would incriminate plaintiff.

Harold Bennison Ward Osborne, carrier, of Foxton, stated in evidence that he was the present conductor of the band. Witness was one of the men who went to Wellington to investigate band matters. There was a band practice held on 10th September at which witness heard the remark passed “that there was going to be some suing done.” Defendant said' “There’ll be no suing. I have enough, evidence to stop suing.” Never heard gaol mentioned.

Basil J. Wialls, poultry farmer, and Frederick Ebbett, rope maker, gave corroborative evidence. Neither witnesses saw any letter in the bandroom.

Darcy Albert Knewstubs, registered drain-layer, said that defendant had remarked he had sufficient evidence “in his pocket” to stop plaintiff suing anybody. This concluded the evidence and counsel adressed the Bench. Mr. Cooper said that the evidence for plaintiff was extraordinary in that Aitchison was first threatened with proceeding, and apepared to have done such things as to make Colder switch his attention from Aitchison to Brooks. Plaintiff had been liable to criticism, and his witnesses bad said what they believed look place, but which was not reliable. Mr. Ongley said the charge'was not a trivial one, and there was no room for the possibility of a mistake. DECISION FOR PLAINTIFF. In summing up, His Honour said that if there had been only a first cause of action for slander it would have been one man’s oath against that of another, and His Honour would have held, that plaintiff had not discharged the onus of proof. As it was there were two causes of action, and three witnesses had sworn to having heard the statement alleged, while the witnesses for the defence had only deposed to not having heard it. It was possible they had heard portion of another part of the conversation as they saw no letter produced. He interpreted the meaning of the statement to read that defendant had written evidence and could prove plaintiff guilty of a criminal offence. The writ had been issued and no apology had been asked for. Ibis was not a wise procedure. The defendant admitted, however, that plaintiff on no less than four occasions saw him and he refused to apologise. Therefore plaintiff was justified in bringing the action. It was not a case for heavy damages and counsel for plaintiff had. stated that the case had been to clear plaintiff’s character rather than to receive substantial damages. The case would be met by awarding £l2 110 sOd on each cause of action, a ' total of £25.

His Honour remarked that the ease should have been brought before the Magistrate’s Court, which

had jurisdiction to deal with claims up to £2OO and legal argument ensued on the question as to whether this should have been done.

ITis Honour, however, remarked that he was not prepared to certify and entered judgment for plaintiff as giveii above, with costs aeording to the Magistrate’s Court scale.