ALLEGED LIBEL.

Taranaki Daily News, Volume LV, Issue 249, 11 March 1913, Page 7

ALLEGED LIBEL.

RIYERDALE DAIRY CASE. YERDICT l-'UR TI LE I'LA INT I EF. Finality was reached late yesterday afternoon at the Xevv Plymouth sessions of the Supreme Court in the case in which A. 11. Playle sought to recover £5Ol damages from the Riverdale Dairy Company for alleged libel. Charles Cooper, manager of the Ma> ngatoki Dairy Company, continued his evidence, which was in the main corohorative of that of previous witMesses. He stated that the tests of suppliers to his factory were posted, and in auspicious cases he put down what quamtitv of water, in his opinion, the milk contained. Witness was cross-examined by Mr. Jlyers, after which evidence was given hy A. 11. llustwick. imuiaging assistant to Mr. A. E. Sykcs. chemist, New Plymouth. who said that if the tost on the 2."ith represented a fair standard of Mr. WilcncW mill:, (hen vi'b regaid to tests Nits. 1, 2 and ."> there was -trong presumptive i-vi'lf.H.".' (if added water. He could not oiler .n.v other exjilan;'.tioii. A cold snap was not going to reduce tin' soiids not. fat to tins eMent. Po Air. Myers: If he was called upon to make a test for water in milk lie would not rely on the Bahcock and lactometer alone, though lie had tested the»e re-nlls hy oth.r chemical analysis ;,1 "1 the figure - -, had coii.'e out al>ot":t even. \\ illiam YY Forsyth, factory manager for the Riverdale Company, said that (he standard on October 25 was a fair average standard'of Mr. Wileoeks' milk .it this time of the year. He recollected the milk of October 2(1 coming to hand. The temperature was below Til, so that he had no doubt that the milk was eooled. and ho had no doubt whatever that Xos. 1, 2 and 5 samples contained water, A shade of over 9 per cent, solids not fat was a fair standard for Mr. Wilcocks' milk at this time of the year, and in making his tests he would therefore use When he went to Mr. Wilcocks' farm there was no one about. He went, to the tank, but it was empty, so he could not got any water into the chute. He afterwards looked into the chute and found a iiole rusted through. It yvas well nigh over one-eighth of an i*ch long and just under one-eighth of an inch wide before lie touched it. There were several spots of rust about a foot , away. He scratched a piece of rust off with his thumb-nail and that left a hole. ; lie had made evaporation tests of the morning's milk' of October 2li, and it came out about the same as with the Babcock and lactometer. i J. Y. \Yyboiirn said he had been sec- ; retarv of the Riverdale Company for j nearly nineteen years. He remembered the meeting of directors on November j 4. Mr. Playle was present for half-an- j hour during the discussion as to how ' water got into the milk. He had re- j ceived instructions from the directors as to posting up tests apart from those appearing in the minutes. He remembered j a meeting of directors on October 10, ; with Mr. Wilcocks as chairman, and from that received instructions to post j up notice of any watering. To His Honor: Tests had been posted . in similar manner previously. The public must see the notice to some extent. Robert Brown, instructor in agricul- i ture under the Wanganui Education Board, and John Frew, first assistant in the Riverdale Dairy Company, also gave : evidence.

The following formal issues, as sottied by the Judge in Chambers, were submitted to the jurv:—t_l J Were the words and figures complained of writtin an I published of and concerning the plaintiff? (2) Do l lie words complained of mean—"that large quantities of water had been added by the plaintifl and by bis authority or with his know-, ledge and approval for some improper purpose to the milk delivered by him at the defendant's factory in the mime of Alfred Willcocks?" CI) Didthe milk in fact contain water not. originally in the milk? (4) To what damages (if any) is the plaint ill' entitled'/ In liis address to the jury Mr. Morrison said that the dili'iculty that Professor Kasterlield and Dr. MeLauriu were in in dealing with the tests was that they did not know what was the standard of the milk that was being tested. Their contentions were opposed by Mr. Forsyth (manager of the factory) who knew the standard of the milk he was testing and he could therefore apply his tests with that amount of accuracy that enabled him to indicate the presence of water. The expert'witnesses called by the plaintiff did not, on the other hand, know the normal standard of the milk, and failing this had to take some assumed standard, based on a very low average. Mr. Forsyth took the last test bv means of evaporation and fouml as a result that his original test was corred. As a matter of plain, ordinary '•horse-sense" it was impossible to escape from the conclusion that the tests were substantially right. As there was no designation, name or description of PI ay I e in the alleged libel no person couhl reasonably say that it was written of and concerning the plaintiff. Tn the public interest the jury was not to lie effected by those who chose to put a narrow —lip niijjlit oven say moan—construction on the libel. The word "added" was a perfectly innocent word. Xobod v else had even complained of the use' of the word, which was quite the common practice. Addressing the jury. Mr. Myers refuted the contention that the plaintiff was laboring under an imaginary grievance, that the coinpanv was not desirous of hurting his feelings, and that he had suffered no hurt. What had the company done when it was asked by the plaint ill' on November 23 to make decent and honorable amends when given an opportunity. No money was asked for and no abject apology demanded. What did the company do! It treated the whole matter with contemptuous indifference. Iliev had heard from one witness that simin; farmers it was held thai the addition of milk which meant better tests--the robbery of other suppliers, or the company —so that the person who put the water in the milk did so for some fradulcnt or dishonest purpose. Mr. I'lavle was bound then, if he had anv respect for hnn-cll. to come to Court and endeavour to vindicate his reputation among the people ill his neighborhood. The words ''added water" charged I'lavle with being a party lo an act which reasonable persons would consider to be mean and dispicahie. After referring to the fact that the company had a legal remedy under the Dairy Tndustrv Act against I'layle, which it had neglected lo put into force, counsel went on to say that no question of privilege arose. The company was in no way priviligcd to put up the notice. The company had not attempted to justify the, al!eua!iun thai there was water in the. iniik because it had not alleged in Court that Mr. I'lavle had put the water in. The onus </' showing the presence of water was on the defendant company, not. on the plaintiff, who' was entitled to any doubl. All the talk about, the lactometer I'abcock tests was just. so much rubbish. If fliev did not know in the first place the composition of the milk, then it was quite impossible for them to say so afterwards. As to the significance of the words ''added water." what other meaning than that of a dishonest act could the company expect to be put upon them, in the light of its frequent reference in its minute book to the "mana'.rer having reported certain sunpliers for putting water in their milk?"

Atliough the plaintiff was not referred to by name in the libel, there was no (jueslion that from their local knowledge of his position his fellow suppliers drew the common inference that in point of fact it referred to liini, as share-milker with .Mr. Willcocks. In summing up. Mis Honor, who spoke for half-an-hour. pointed out that it was immaterial whether aiiv libel had licen intended. The jury would have to consid sider interpretation or the words. Would a reasonable man to whom the publication was read consider that thev conveyed a defamatory Did the. words imply dishonesty? if the jury found that they did not, then it was no use considering the other issues. For what object were the words published? Was it merely to publish carelessness, and would not the proper course have been (assuming the milk was watered) to advise Mr. Willcocks personally? Oughi a man to be pilloried at all for carelessness anil could a man be pilloried at, all, without any suspicion of dishonesty? Tin se were questions for the jury, wilh whom he need hardly mention, rested the whole case. He was not directing them one way or (lie other. Touching on auollier U-ii". His lienor s:;M it wonM lie i,c,\"-sarv (,» consider it. whether it '.vas a libel, it was a libel ;>!> til'' p : ai-i! ijV. R be .-uiVicieut if the jury sa'tislicd it-elf that in view of llieir knowledge o'i the j, : rti!•-. concerned. it could reasonably be treated by persons living in the neighbourhood as conveying to their minds that the words might be applied to the plaintiff. The question whether the milk contained water was not material at all to the question at issue. Fimtiiv. if the jury did not find on the iirst two issues for the plaintiff the question of damages did not arise. Taking all the circumstances into consideration it was not one—if the jury found there was a libel—for contemptuous damages.

THE VERDICT. _ Tim jury retired at 4.15 p.m. ami at 5.-10 returned to tin' body of iiifj Court. •Mi-. Morrison formally banded in bis points for a non-suit, and the foreman then announced Hint the jury had arrived at the following conclusions:— First count—Yes. Second count —Yes. Third count —Yes. but not to the extent shown in the test hook. The jury were unanimous on the first three issues, but were unable to agree on the last count. At the suggestion of His Honor they again retired ii> order to arrive at either a unanimous decision or a three-fifths majority. After a retirement of ten minutes they returned with a verdict for £:>> damages. Mr ."Myers moved for a judgment, and Mr. Morrison for a non-suit." His Honor said that these two matters would have to lie argued later, and he •according!) reserved his decision. The decision will most likely be aiven in Wellington.