SUPREME COURT.

Poverty Bay Standard, Volume I, Issue 309, 13 December 1884, Page 2

SUPREME COURT.

YESTERDAY. (Before His Honor Judge Gillies.) Hy. Mac Kay v. J. Tutchen. Witness read a letter received by the def aidant from Neill Bros, stating they would ■iNtir.ute b quiries. Examination continue-.]—Was agent for lie Hamburg-Magdeburg Company. Ba-iiemb-'ied on one occasion that defendant :ive him information relative to the fire in pieaiioH. Was not one of Mr. Stevens’ linking puls as mentioned in defendant's oiler. Was not aware of any fraud being icrpetrated in connection with th. 4 fire, nor •f any conspiracy, or paid witnesses in Steven’s case against Tu chen. Was ce lain he had not taken any risi suhicu o her offices uad it fused. The first he knew of the matter was receiving the letter from Neill Brothers. His sole business was that of general agent and accountant. To Mr. Kenny—ln January last after Steven’a fire defendant spoke to him. He ■aid.that Charles Christian and his sons had seen Stevens and his men carrying their goods iway from the house on the day previous to Ihe fire, and (defendant) said that if witness lid not inform Sergeant Bullen he, would do so himself. Defei dant did not tell him to inform the principal agents of the Hamburg Company. His Honor said it did not much matter whether it was told cor.fflenteilly or not. A man had no right to libel another whether publicly or privately. Mr. Kenny argued that there was a difference, and asked his Honor to take a note of what he contended. Examination continued--Defendant never •aid ho would inform Neill Bros, if he (plaintiff) did not. To Mr. Rees—Reported the affair to the police after the receipt of the letter. Did not leave anything undone to enquire fully into the matter.

J. Tutchen deposed that the letter produced to Neill Bros, was in his hand writing. He thought it was, but would not.-swear to it. Received a letter from Neill Bros, stating that they could not treat the contents of his communication as confidential and stating that they had handed his letter to the plaintiff. To Mr. Kenny—Had made a statement to plaintiff regarding the fire. Had himself told piaintiff that he had heard certain strange things about Steven’s fire. He gave plaintiff his authority for making the statements and told him he could make use of it as he liked, but not to mention his name in the matter, as he did not wish to be mixed up in the .affair. Advised plaintiff to write to the head office of the company about what lie said relative to the fire. In June he was served with a writ for £5OO damages by Stevens. McKay was then put down as the principal witness against him. Wrote to Neill Bros., as he considered it was his moral duty. To Mr. Rees—Was much cut up about the with _ [Stevens. Had not said any- - thing to anyone eli-.e about tfie -chargea in 'regard to lhe firo. •' ’ Mr-. Kenny moved for a nonsuit pa lb ground that the publication of the libel h i 1 not been proved. Th" first words whjyli wer eom;.Jai::<’d of Were, “ I did not know at th ■ time that Sfevfens was mm of M K' y’s drink i’"g pals, or I should have been more careful.’ He apprehended-that that was not meant to convey an imputation tbo.t Stevens and MeKa;, were two drunkards, hut merely that thwere very friendly, and that if he (defendant; had known that ire would not have made use

of thoso statemcnti! which had caused him bo much annoyance aßersvarde. He contended that the other libellous plnnbcs boro two constructions, and need not have been con* strued from a libellous point of view. Again there was a certain amount of truth in the statements. He still submitted that there was a moral obligation or moral duty cast upon the defendant in tho case to communi* cato the f icts with which he was acquainted to the general agents of the insurance company.

His Honor saids-In this case there can scarcely be two opinions, and there seems to me no doubt that this letter is libellous. It contains insinuations that the insurance agent has drinking palp, that he had been fteting fraudulently and that he was attempting to expose him, and also that the action brought against him by Stevens was a case of conspiracy. But the worst comes in at the latter pait of the letter, which is certainly libellous by very strong insinuations, and its meaning must be taken in its natural sense. What it conved to his mind and to the mind ol any man reading it, was that the plaintiff was a man of very improper character and was anxious to be the agent of the Company here. It war r very broad insin. nation to say, “ when we can’t speak well of a man we should leave him alone,” and that really means that there is nothing whatever good to say about him. It was quite clear that all this was libellous. Tbe next ques* tipn was (is to whether there was a privilege iHadh’d from the cireiimstaiicps in which it •va. \ ritten or an account of the relationship of the defendant to the party with whom he communicated, and whether there was any duty, either moiai or social. It appeared that il ere was no such thing in this case. The defendant was simply acting as the propagator of rumours and has meddled in mat* ters with which he had nothing whatever to do. Had he been a witness to any of the facts which might create in his mind a suspicion 'hat unfair play was being transacted in reference to the fire, then probably It might have been his duty to communicate what he actually saw, and be justified in the way of performing a social duty by giving evidence of the crime which he believed to nave been committed, but to extend the matter further, and to say that any man who happens to hear a rumour in the street about some uncertain crime, and repeats it, then he said he has no duty cast upon him in so repeating it, and if he does he is liable if he is not prepared to justify what he says by the absolute truth of it. The mere fact of his only repeating a statement from another person’s authority does not in any way exonerate him. It is well that people should know that, because many have got intp the habit of making wrong statements, and saying they do so on the authority of other people. In this instance the defendant is liable by propagating the statements, there is nothing to justify the defendant writing to Neill Bros,, if even to protect him in this action, for they could not do it. What the letter asks is for them to exercise powers over the local agent here, and that is the only construction that can be put on it, and for that purpose he maligned the agent to them, which shows that his action was not as he attempts to make out, in pursu-' ance. of any dnty either social or moral, and indeed that he did not bona fide conceive that he was doing it for that purpose. Now the only difficulty was as to damage. There was no evidence for special damage. Were this case between persons who are in an insignificant position, much injury could not be done, and probably nominal damages would be sufficient, but in a case like this, where it has been an attack upon tho plaintiff’s character, and were both parries concerned hoi t public positions, I think sub* siuntial damages must be given. Of course nothing like the amount claimed. That amount is only arrived at by the lawyers who put it in as laige as possible, in order to be run up in the highest scale of costs. There is another consideration, that the public generally ought to feel that they wi.l be protected from the tongues and writngs of persons who should nut meddle with other people’s affairs. I think that £5O as damages will be sufficient, and costs on the lowest scale.