ALLEGED SLANDER.

Taranaki Daily News, 16 May 1917, Page 6

ALLEGED SLANDER.

•- A MIDHIRST CASE. ; > SEFTON v. BASKIN. PLAINTIFF RECEIVES '£3 so DAM- ' AGES. The Supreme Court, New Plymouth, was occupied yesterday, His Honor, Mr. Justice Hosking, presiding, in the hearing of the action, May Sefton (Stratford), v. Lowry Baskin (member of the Stratford County Council), in which the plaintiff claimed £750 damages for alleged slander. Mr. A. H. Johnstone appeared foi the plaintiff, and Mr. T. Neave, with him Mr. H. E. Billing, for the defendant.

The following jury were empanelled: Messrs. F. E. Gadd (foreman), John McGrath, William Lander, Arthur Grey Mason, W. T. Duffin, C. P. Dugdale, F. Jones, jnr., C. W. Hooker, H. E. Hill, C. C. Lister, E. Haskell, J. Nodder. Mr. Johnstone, in opening, said the case was one in which a woman claimed damages for defamation of character, and the law most jealously guarded the rights of every man and woman to protect their characters from false and malicious allegations. There were two forms of defamation of character, by written words, and by spoken words, the former constituting libel and the latter, as in this case, constituting slander. In some cases of the kind it was necessary plaintiff had lost his situation, been injured in business, and so forth, but the law went further and did not require such proof when the chastity of a mar'ried woman was imputed. Formerly a case in which such an imputation was made had to come before an ecclesiastical court, but in 1891 in England and in 1898 An New Zealand the law had been altered, and now. a woman who had been slandered had the right come before a court of law and demand redress. The facts were that from August, 1916, to February of this year the plaintiff's husband had been employed by the Strat'ford County Council, the County engineer being a Mr. James Lopdell. During that time he and his wife lived in a house belonging to a Mrs. Wing Kee, in Kelly street, Midhirst. In Decemiber last Mr. Sefton enlisted and went into camp, but in March he was discharged as unfit for service. The defendant, Mr. Lowry Baskin, waß a farmer and a member of the Stratford County. Council. For some twelve months past there had been considerable friction between Mr. Baskin and the engineer. The council provided the engineer with a motor car, and at the February meeting Cr. Baskin took the engineer to task for what •he alleged was the improper use of the motor car. In doing so/Or. Baskin made a surprising speech of which full notes had been taken by a skilled reporter, who was present. The speech was us follows, and evidence would be called to show that the report was an accurate one:—

"Mr. Chairman: _I am going to bring up the matter of the motor car. I have received two anonymous letters about the County motor car being used for purposes totally apart from the engineer's official duties—that is joy rides. A councillor: What is.the use of discussing anonymous letters? Give us the names?

Cr. Baskin: One is signed by a ma.i who I have not been able to iraee. These letters asked that Council should see the County motor car as it; was used for pleasure. Personally l am in sympathy with the letters. The car is lout at all hours .of the night and day. The car cost £415, and was not bought for the purpose of jay rides. I myself on a certain occasion saw the car proceed along Kelly- Street without lights, and there was only the engineer in it. It went along Denmark Terrace with a woman in it. Now this woman's husband is a Council employee and had enlisted. There is only one inference that can be taken from that. The engineer is a married man, and I would not care if his wife accompanied him. The matter is public property, and I have frequently been spoken to about it. A woman at Midhirst told me. Cr. Anderson: Give us the name? Cr. Baskin: Mrs. Wing Kee. She said she had. a good tenant in her house and that if the engineer was not kept away she would lose her tenant. I think the date upon which I saw the car go up Kelly Street was January 1. lam not quite positive of the date but know that it was u Friday. This sort of think is not good enough and it is time that it.was put a stop to. Mr. Chairman, I ask you if you have not heard the same -thing. The car has been seen standing at the roadside without lights and no one in it. The car is also kept out at all hours of the night and not for the purpose for which it was purchased.

Counsel, continuing, said it would be [ necessary to prove that the words had been üßed, that they referred to the plaintiff, and that they showed malice. As to damages the plaintiff did not ask for heavy damage, hut only for such reasonable damages as would completely vindicate her character from the imputations cast upon it. Alfred Camcross, journalist,. on the staff of the Eltham Argus, was the first witness and deposed: I attended the meeting of the Stratford County Council on February 21 last. Mr. Baskin was present and'made a speech. (The speech read in the counsel's opening statement was here read to witness and stated to be correct). The speech caused quite .\ stir, and I afterwards found out that the woman referred to was the present plaintiff. Mr. Johnstone was proceeding to ask the witness whether at any previous meetings of the Council Mr. Baskin had attacked Mr. Lopdell, when Mr. Neave objected.

His Honor said the evidence could be called in rebuttal if the defendant called witnesses in support of the plea of privilege. Witness, continuing, said: The only persons present and heard these words were the councillors, the press representatives and' the Court Clerk.

•To Mr. Neave: I did not publish all of the speech in my paper. I spoke of it afterwards, when the matter was being generally discussed. Mr. Baskin is a slow spoken man, deliberate, and calm. Mr. .Neave: No trace of passion? Witness: .Oh,:'.yes, and I have heard him quarrelling before. One councillor took objection ito the speech on behalf of Mr. Lopdell but no councillor rose to protect the character of the lady. His Honor: How did the matter arise? Was the engineer's report or any motion about him befere the meeting? Witness: It was under the heading of

general. • Almost every meeting of the Council I have attended either Cr. Smith or Cr. Baskin has had something to say against the engineer. Cr. Baskin is a man who keeps a keen -yc on paltry expenses and seemed to abhor wasteful'ness. It was not always in connection with email matters of expense that Cr. Baskin attacked the engineer. Be-examined by Mr. Neave: There were four reporters pressnt at the meeting. I have only been present at one meeting at which there was no pricking at and fault-finding with the engineer. At three meetings motions were brought forward to dismiss the engineer, but on each occasion only the mover and seconders, Crs. Baskin and Smith, voting for it.

PLAINTIFF'S EVIDENCE. May Sefton, the plaintiff, deposed: My husband, David Sefton, worked for the County Council under Mr. Lopdell, the engineer, from August to February last. We lived in Kelly Street, Midhirst, in the house of Mrs. Wing Kee. I know Mr. Lopdell, but not vcrv much, lie came occasionally to our house to see my husband on business 1 : I have two children, one three years and two. I have been in Mr. Lopdell's motor car once. I was walking from Stratford when he overtook me and picked me up. He put me down in the main road. My little boy was with me. I was first told of what Cr. Baskin had said by my sister-in-law and subsequently by my husband.

Cross-examined by Mr. Neave: My sister-in-law did not say all that was in Cr. Baskin's speech; she simply told me that he had been speaking about my going out with Mr. Lopdell and I was, of course, annoyed. There might he nothing wrong in my going out with gentlemen for a spin in a motor car, but people would talk. My husband has been once in the car with Mr. Lopdell. I met Mr. Lopdell first in Stratford when my husband was working for the County. It was through Mr. Lopdell that my husband got employment. My husband took no offence at Mr. Lopdell giving me a ride in his car, arid no one but an evil-minded person would think any harm of it. David Sefton, husband of the plaintiff: I was working for the County Council fromi August, 1916, to February, 19197. I lived in one of Mrs. iv ing Kee's houses jn Midhirst; the person who lived ; .n the other did not work for the County Council. I enlisted in December and went into camp, but was discharged in March as unfit for service. During all the time I lived in Midhirst I was only absent one evening. I was told when 1 enlisted by one of the Patriotic Committee that I was the first married man who had done so. I have always lived happily with my wife. I first heard of what Cr. Baskin had said from the engineer. Previously some men on tinroad asked me if I was going for a joy ride, hut I did not know what they meant till I was enlightened by Mr. Lopdell.

To His Honor: The words in the speech could only refer to my wife and myself because I was the only County employee who lived in Kell Street, Midhirst, and the only married man in Midhirst who at that time had enlisted. Cross-examined by Mr. Neave: I got the job from the foreman, confirmed by the engineer. I took no offence at my wife being given a lift in Mr. Lopdell's motor car.

To His Honor: She passed me in the car where I was working on the road. It is a two-seater car.

To Mr. Neave: Mr. Lopdell never offered to take mv wife and self to the pictures in Stratford whenever we lived. I first heard the words of the speech in Mr. Johnstonc.'s office, but I saw some reference to it in the Eltham Argus. The newspaper reference, however, did not refer to ray wife.

His Honor asked what was the precise meaning of the words "Joy Ride.'' Did it not moan a case wherein a servant took his master's machine for his own pleasure? Mr. Johnstone said no doubt the words might have that interpretation, but they might mean a car ride with which there was connected drink and other things. Probably the jury would understand what they conveyed in common parlance. COUNTY COUNCILLOR'S EVIDENCE.

. Edward Walker and John Christoffell, members of the County Council, gave evidence to the - effect that they had heard Cr. Baskin's speech at the February meeting and understood, at the meeting or subsequently that the woman referred to in the speech was Mrs. Sefton.

T. B. Anderson, also a member of the County Council, gave similar evidence, adding that when he heard the speech he said if he was the engineer lie would invite Baskin out and thrash him. This was all the evidence for the plaintiff. A NON-SUIT REFUSED. Mr. Neave asked for a non-suit, or in the alternative judgment for the defendant on several grounds. (1) That the words were not .capable of defamatory meaning without innuendo; (2) that there was nothing in the evidence to show that any of the persons hearing the words understood them to be defamatory of the character of the. defendant; (3) that the meaning of the innuendo alleged was not a reasonable, natural or necessary inference from the works used; (4) that the occasion upon which the words were used was privi. leged; and (5) that no malice had been shown.

His Honor said that with regard to privilege he did not think it was a privileged occasion. The words complained of with regard to the plaintiff were absolutely irrelevant to th<! question under discussion, and could not therefore be considered privileged. •Mr. Neave said a member of Parliament was privileged to say anything he liked about anybody. Certainly a member of a County Council had not the same extended, privilege, but there was a qualified privilege by which he was entitled to complain as 'a councillor of the actions of a servant of the council. His Honor: But what lie says must be relevant to the complaint he has to make.

Mr. Neave submitted that the words used by Mr. Baskin had only been intended to refer to the engineer's misuse of the car, and therefore were relevant. If malice was imputed evidence should have been called in support, but this had not been done.

His Honor: If a county councillor is to be allowed to slander a woman who is not a servant of the council in making a complaint against a man who is a sercomplaint against a man who is a servant of the council, it would be extending the, privilege very far indeed. Why was the woman referred to at all? Mr. Neave said Mr. Baskin's complaint was against a servant of the council, and it was therefore privileged unless malice were shown. His Honor: If a man says such a thine against a woman he does not know, it is difficult to see how malice could be shown.

Mr. Neave: We contend there was no .inference against the woman. His Honor: If any man read this speech about his wife I imagine he would consider it a very strong inference indeed. I will rule that defendant's words are capable of a defamatory meaning, and refuse the non-suit, reserving leave for defendant to move for judgment on his behalf.

Mr. Neave, in opening for the defence, said the question was a very important one affecting the rights of members to protect the ratepayers from the improper expenditure of their money. At the meeting of the County Council Mr. Baskin thought it his duty to complain of the manner in which the motor car was used. As to who the others were who rode in the. motor car was quite subsidiary. Mr. Baskin's whole, object was to complain of the manner in which the engineer had been using the motor car, and he had had no intention whatever of casting any reflections on a lady's character. The whole burden of his complaint was that the ear was being used for the pleasure and not for the purposes for which it had been purchased. In support of this contention counsel proceeded to record the speech and analyse it sentence by sentence. He pointed out that at the meeting of the council no mem'ber got up to defend the character of the woman simply because they did not think for a moment that her character had been attacked.

Lowry Baskin, the defendant, deposed: At the meeting of the council in February I made' a complaint against the engineer. The report of what I said which has been read, is substantially correct, except that I said that I saw the car go up Kelly Street and down Denmark Terrace. I mentioned Kelly Street because it avoided the main part of the road. I received the letter produced, complaining of the engineer making a'complaint against the enginear on the Monday 'previous to the December meeting of the, Council. A great many people, scores of them, anyhow',, have spo';en to me about the improper- use of t!ie motor car. I have seen the engineer in the car with a woman at a time I do not think ho could' have been on county business. There was something of the nature of a general complaint about the misuse of the motor car. I have not the slightest reason to attempt to injure Mrs. Sefton. I Baid the engineer was a married man and I did not object to .him taking his wife with him, bub I did object to him taking a woman not his wife, as I reckoned it was apart from county business, when that sort of business was going on. The upkeep of the car for the past nine months has been about £75.

Cross-examined by. Mr. Johnstone, witness said: I have been a member of the Council for about two and a half years. It is about twelve months since I heard the first complaint about the motor car. About that time, at a meeting of the council, I complained that the engineer's report contained nothing abput the axle of the motor car having been broken, and stated that I had received several complaints about the use of the motor car. My speech at the February meeting was not the only other occasion on which I brought the matter up. In December last I gave the chairman an anonymous letter 1 had received.

Mr. Johnstone: Did you in your speech- at the February meeting of the. council refer to Mrs. Sefton?—l never mentioned her name.

Did you refer to Mrs. Sefton?—l referred to 'Mrs. Wing Kee's tenant.

Did you refer to Mrs. Sefton That is my question, and I will not go further till you answer it.—l cannot answer a statement such as that. His Honor: Dp you know of any other employee of the county council who lived in Kelly Street, Midhirst, and who enlisted about the same time? —No. Mr. Johnstone: Did you' have a law •case with Dr. Paget?—Yes; he brought in action against me for breaking his 'arm, and the jury's verdict went in my favor.

Was a re-hearing applied for? —Yes, but it never came to a re-hearing. Was the application for the re-hearing granted ?—Yes.

On what grounds?—On the grounds that I interfered .with the jury. Did you interfere with the jury, and attempt to tamper with justice?— Yes, unknowingly.' I spoke to two of the jurymen, not knowing that I was doing nny harm. The re-hearing did not take place because, on the adivce r.f my solicitor, I paid a sum of money to cave further legal expenses. Continuing, witness admitted, in answer to counsel, that he had had previous trouble with the engineer,, in which he (witness) challenged Lopdell to bring an action against him, adding that, failing tl\is\. he would bring an action against Lopdell.

This closed the evidence for the defence.

Mr. Johnstone said his learned friend had commented on the fact that he had called no evidence to the effect that the words used by the defendant imputed unchastity and adultery to the plaintiff.

His Honor said this case differed somewhat from ordinary actions of the same kind. If the words used did not impute unchastity or adultery the plaintiff could Hot succeed, but it was for the jury to say what meaning' could be taken out of the words. What, then, was the use of calling witnesses as to the meaning of the words? It would only be neccsnry to prove malice if qualified privilege were established. After further argument it was agreed that issues should bo put to the jury as to whether the words used referred to the plaintiff, whether they imputed unchastity or adultery, whether they were malicious, whether they were beyond the privilege of the defendant, and what, if any, damages the plaintiff was entitled to. Counsel having addressed the jury, JUDGE'S SUMMING-UP. His Honor summed up. He said he could not quite agree with the last observation made by counsel for the plaintiff, which had seemed to imply that the jury should begin bv finding what- damages the plaintiff was- entitled to and then proceed to deal with the other issues. The action was one for defamation of character, and the law gave a man or woman the right to protect his or hor character from being defamed the same as it gave them the right to protect their properties from trespass. >l?p tn recent years the law bad been in a curious position as to the defamation of a woman's character; a woman could not formerly in common law bring an action for any imputation on her chastity unless she could show some special damage. This was altered now, and a. woman who had been so defamed had a right to come into a court of law and ask for damages for such defamation. The Words spoken must be published. Tuat did not necessarily mean printed in a newspaper; publication by making the statement to any two or more persons

was sufficient, and there was no question in the present ease hut what they had been so uttered as. to consittute le<ml publication. The first issue was: Were the words alleged or concerning the plaintiff? Of course, the plaintiff was not directly named, but that was not necessary to make a defamatory statement actionable. A person might he indicated unmistakably in various ways without bei% actually'named, and the question was whether* "the" allusions made referred to arid affetced the plaintiff. If the allusions in' this case indicated the plaintiff, the jury must conclude that it was the plaintiff who was meant, and no other woman, and to como to that conclusion they must take all the word? of the speech together and not any isolated part of it. The second issue was: Did the words impute unchastity nr adultery to the plaintiff; The term j unchastity would apply to a single wo-' man, who, of course,, by being unchaste I did not commit adultery; but unchastity in a married woman necessarily implied adultery. If the jury did not think the words used meant.that the plaintiff had been guilty of unchastity ,or adultery, then the case failed. Even now a woman had no redress at law if accused of loose conduct if she could show no special damage, or if tlio allegation did not amount to one of adultery. Counsel on both sides had delivered eloquent addresses, air. Neave, on the one hand,, invited the jury to.look at the speech as that of an honest economical councillor, anxious to save the money of the ratepayers, while Mr. Johnstone, on the other hand, had laid stress upon the fact that there had been friction between the engineer and the defendant for a considerable time. It was for the jury to decide whether the words were defamatory cr not, but, at the same time, ho might make one or-two suggestions that I might assist them. In the first place ha i would call their attention to the fact i that the intention in a man's mind as to the 'meaning of any words he uttered did not make those words defamatory or not, whr.t be paid must be taken as what he meant, and if the words were defamatory there was liability. If it was shown, however, that a man had unwittingly uttered a slander, the jury could rightly take the fact into consideration in mitigation of damages.' The various aspects of the question had been placed before the jury by counsel, but < there was a suggostioirthat had occurred to him that had not been mentioned and that might be of assistance to them. Had or had not the county engineer committed adultery, and, if so, was plaintiff the woman or one of the women with whom iie had been guilty? Tf the engineer had been guilty of adultery the council would, be quite within its rights iu dealing with him, but whether they would he wise in going further and accusing the woman was another matter. The question was: Could a fair and reasonable man understand from the words of the defendant an imputation that the plaintiff had committed adultery? In dealing with the question,the jury must, us counsel for the defendant had urged, consider the subject of the defendant's speech, namley, tho economical use of the county motor-car by tho engineer.There had been strained relations between the engineer and the defendant for over twelve months, and it had beep argued that the; defendant might have been in a. state of mind extremely re? ceptive to anything he heard about or against the engineer, As-to the reply of the, plaintiff to the counsel for* the defenec'i. he wished to make an observation. Mrs, Sefton had said .that she could saji no harm in a woman going for n ride ili* a motor-car with a. man, but in his Honor's opinion there might' be harm in. the way another man, who saw them go, went to his friends.and told them about it. That was where an evil-minded per- ' son might put a harmful construction on the circumstances. Whether thcjjrtcfendant had uttered any words thnt'Sm- • plied adultery on the part of Mrs. Sefton, or whether 'he had not- done so, was a question for the jury and the jury alone to decide.' Thus they, Would have to look at the whole position fairly and without any regard at all to' what was in the defendant's mind when ho uttered the words of which the plaintiff complained; they must take his words as what he meant, and decide whether they Imputed unchastity or adultery: Next came, the question of privilege. In some cases a man could speak freely as to the character of any person and no action would lie against him, provided the speaker was not actuated by wicked or malicious motives. A member of Parliament could say anything he liked about anybody in Parliament and not be legally responsible for what he" snid. and the same applied to counsel and. Judges in court of law. It was'important in the public interest that in Parliament, and also in courts of law, there should be absolute freedom of speech. That right was confined to Parliament and courts of law, for although the members of countY: councils and other public bodies

I had the right to free speech ttfo privilege only extended to utterances which were right and proper in connection with the performance of their duties. It had been laid down by an eminent English authority that such utterances were privileged provided tliati the person uttering them did so bona fide, and did make use of the occasion to make use of the rights he possessed. Therefore, lie thought the jury might answer the question as to whether the -occasion was privileged in the mato question then becoming *%h*ctfter#Hhe words :had been used maliciously against the plaintiff. He did noji think it could .bi! taken that the defendant had any malice against the plaintifi',, but the question was whether his words bore the interpretation put upon them hy c&unsel for the plaintiff, ,'The., question ,wal: Did the aspersions made on the engineer indirectly drag in the plaintiff, and did the defendant allow himself toi get into Mich a state of mind that lie was. ..reckless as to what he said and exceeded •; hi*®j»sil.eg&aosj ifrafti.speech as ~a, ? weuM.« ber of the county council. As to 'the' amount of damages, if the jury considered "the plaintiff was entitled to a" |verdi'ct, that again was,, a, matter, for ithem to decide, jkt anyjrote tho flam* kges, if aw v ar(te'3;' should'hot be so' low 1 ;as to bo contemptuous nor so high as •to be vindictive. He did not think ho could assist them any further, and would leave the case in tl\cir hands. Tho jury •> retired at 4.33 p.m., and about an hour later returned to ask a question. The foreman stated that the jur" were unanimous on all the issues except with regard to the nssesment of damages. Was'it nccesasry, he asked, that they should bo unanimous on that point? His Honor replied that at that stage it was necessary, although after the expiration of a certain period ho could take a majority verdict. Ho suggestcd / they should further consider the matter and try to conic together if possible. The jury again retired, and after fifteen minutes further deliberation returned .answers to tho issues submitted to them as follows: (1) Were the words alleged spoken of mid concerning the plaintiff?— Yes. (2) Did the words impute, nnchastity or adultery to the plaintiff?— Yes. (3) Were the words uttered on a privileged occasion? —Yes. (4) Were the words imputing adultery uttered maliciously against, the.

' plaintiff?— Yes. (5) What damages, if any, if the j plaintiff entitled to recover?—£3so. Mr. Johnstone moved that judgmetft be entered up in accordance with, tire verdict of the jury. His Honor said he could not do bo at ' once, as he had reserved leave to /ir. Ncave to move that judgment bo entered for the defendant. He would note tihat Mr. Jobnstono had moved for judgment for the plaintifi',. bub would hold it over pending argument on Mr. Neave's motion for judgment for the defendant. He would take the argument at the earliest convenience of counsel. The Court then rose till 10 a.m. to» day. ■