MIDHIRST SUNDER CASE.

Taranaki Daily News, 1 August 1917, Page 7

MIDHIRST SUNDER CASE.

tSEPTON v. BASKLV. \ JUDGMENT FOR PLAINTIFF. 'At tV New Plymouth Courthouse yesterday the Registrar, Mr. J. Terry, read the reserved judgment of His Honor Mr. i.Twticc 11 ojkinrr in the slander action, .May Seflon v. Unvrv "Haskin. heard at the .May session* of the Court, when I Mr. A. if. Johnstone appeared for plaintiff, and Mr. T. Nc-ave, of Wellington, with him Mr H. R. Billing, for the de- ' fendant. His Honor, in the course of his judgment, <aid:— | This is an fiction of slander tried before a jury at Xew Plymouth. The words complained of were spoken by the defendant at a meeting on the 22nd April last of the Stratford County Council, of wl.kli he was a member. They are as follows: "I am going to bring up tiie matter of the motor ear. I have received two anonymous letters about

the county motor car being used for purposes totally apart from the engineer's of'K'hl tl'ific* —that is joy rides. (Oouncill.n-: What is the use of discussing anonymous letters; give names). One i:t signed by a man whom I have not been able to trace. These letters asked that councillors should see that tlie county motor-car was not used for picasure. Personal!} - 1 am in sympathy with the letters. The car is out at all hours of the day and night. The car co3t £415 and was not bought- for purposes of joy rides. I myself on a certain occasion saw the car proceed along Kelly Street without lights and there was only the engineer in it. Afterwards it went along IJ°)imark Terrace with a woman in it. Now this 'woman's husband is a council employee and has 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 mattir is public property and I have frequently been spoken to about it. A woman at Midhirst told me—" (A cguncillor: ,: Givo us the name!") Mr. Baskin, continuing: "Mrs. Wing Kce. She said she had a aoo<l tenant in her house and that if the engineer was not kept away she would lo=e her tenant. I thiak the date, upon which I saw the car go up Kelly Street was the first of January. I am not finite positive of the dots, but know that it was a (Friday. This sort of thing is not good enough anil it is time it was put a stop to. Mr. Chairman, I ask you if you have not heard tho same thing. Tho car is also kept out at all hours of the night and not for the purpose for which it was purchased."

Tho plaintifT was the wife of Dtvid Sefton, who had been a laborer in the .employ of the council and had on the date of the utterance of the words sued upon enlisted in the New Zealand Expeditionary Forces. At that date also the plaintiff was living at Midhirst in a house rented from Mrs. Wing Kee. As she was thus identified as the woman referred to (there was really no disputeon that -point) she brought this action, alleging that the -words, inter alia, meant that tho plaintiff had been guilty of adultery with tho engineer. 'No special damage was alleged but special damages wore claimed. Tho defendant pleaded as an affirmative defence that the occasion ion which the words were spoken was privileged, and that they were so spoken i without inalice, in the discharge of his duty as a member of the council iu preferring a complaint against the council's .engineer, namely, that tiie had •used tho council's motor car for private purposes. As evidence of express malice !-the plaintiff relied considerably on the contents of the speeuh, urging the unnecessary introduction of a charge of illicit female intercourse on tho part of the engineer and the superfluous details identifying the woman involved in that charge. "Extrinsic was also given for the purpose of further establishing improper motives on the part of the defendant. This 'was to the effect that the defendant was strongly antagonistic to the county engineer, tho defendant himself in his evidence admitting that they ''pretty well differed from tlie start," The defendant had objected to the purchase of the particular car which was used by the engineer. At practically very meeting of the council, it was said, the defendant and another councillor raised some discussion against him, and within a year those two councillors ha<l brought forward two motions to dismiss him and were the 'only two who voted for the motions. The remarks In question uverc made in open council without any formal motion prol'ttcinir tlicm, but under the head of '''general'' after tho other business was closed. The defendant is described "by a reporter who was often present at tiie meetings as a slow spoken man but calm. In reply to a question as 1o the defendant's manner on this occasion, the witness said: '"Oh yes, there 'was' a trace 'of passion."

At the close of the plaintiff's case the defendant moved for a non-suit, but this was refused, leave, however, beins for him to move at a later 'stage. At the close of the defendant's -case issues wero put to the jury with -the answees found are are as follows: — • (1) Were the words alleged spoken 'of and concerning the plaintiff?— Yes. (-) Did the words impute unehastity AT adultery to the plaintiff? Ves, (:i) Were the words uttered on A pri- \ ileged occasion I—Yes.1 —Yes. (4) Were the words imputing adultery uttered maliciously a£fcinsl the plaintiff?— Yea. (5) What damage if any is the plain■liff entitled to recover?— £350. The jury were directed tli.'it they might find malice if they were of opinion that that portion of the utterance which ■referred to the plaintiff was in excess of the occasion. Tho question whether tho occasion was (privileged was, of

course, for the juilgo, but was incorporated in tie i'S l " l3 for t,le r >ur P o3e of •keening the jury's attention to the qucs■lion of excess. The jury answered the issues of privilege in the alhrniative under the direction of the judge to do so. Pursuant to the leave reserved the ■ defendant lias now moved for judgment !-fur nor-suit or for the defendant on the following g'ouiuls: plained of are not callable of defamatory meaning; (2) the meaning of the words allesed bv the plaintift is not a natural, reasonable, or necessary inference from the words used; (:1) tlie innuendo alleged is not the natural, lcasonablc, or necessary inference from the words \is"d without some extrinsic facts •calculated to support the innuendo; |4) if the word complained of do imply misconduct they do not necessarily imply misconduct on the part of the plaintiff; (5) that the occasion being pnvilegeu no evidence of malice was shown. Able written arguments have .been submitted for and against the motion but (riving tlie fullest weight to those

for the defendant I cannot, say I feol any dou'it that the motion should, be dismissed. Dealing first with the reference to the innuendo. I would point j out that as no special damage uras assorted the action could not be maintained imlttSß the ell'ctt of the words was to imply_ unchastity or adultery to the plaintiff. This was explained to the jury. At the trial I considered the word* were capable of that meaning and nothing that has been urged persuades me that I was wrong. . , . Then it is urged in effect that the imputation of imchastity to a married woman—in other words adultery =v,hs not a natural, reasonable, or necessary inference from the words used / regard being had to the occasion and circumstances of the publication. The occasion, it is said, was the making of a complaint by the defendant at the instigation of the ratepayers of the use of the car for private purposes, and that the statements as to tho engineer's conduct must be looked at from that point of view.

His Honor here referred to the authorities quoted by counsel on this point and then proceeded: Paying full regard to those eases it appears to me that a reasonable inference from the w.ords sued upon is that they do impute unchastity to the plaintiff; indeed, I am hiot sure if that is not the only reasonable inference to be drawn from. thom. According to my understanding of language they charge ffie engineer with using the car not merely for non-county purposes but for purposes of illicit intercourse with a woman, . . . In de-

tormimng what meaning was intended to bo conveyed the jury were entitled to consider the hostile feelings which the defendant entertained towards tho engineer as a factor in holding that an innocent application of tho words wag the last thing the speaker intended or wishpd to bo made. There was, in my opinion, amglo cvidonee for them "to hold iivftt the defendant was d«irouo of attacking tUo engineer and of making tha case against him as bad as possible and to confirm them in the view that the sinister import which the words are capable of bearing was that which was intended.

Then it is argued that the defendant had the undoubted right to convay to 'the council any complaint made against a servant of the council, and if in doing so a third person involved in the complaint was made tiie subject of injurious reflection the occasion ■would protect him. ... I think the question who- j ther tho occasion protected the statement depends on its Televancy to the privileged part of the statement and the circumstances in which it was made. But whether so or not the point is immaterial in tho present case if the (hiding iw ,to malice is sustainable, as I think it is- * . . In addition to the speaker's state of mind there was in this case the futthcr circumstances that the remarks were not made in relation to any formal motion before the council, and that the defendant did not suggest that the council should go into committee to hear tliom. . a . " , I. therefore think tho defendant a mo'tion should be dismissed, and accordingly it is dismissed with £lO 10a costs, and judgment is given for the plaintiff tor tho sum of £350, with eoßts as per scale, witnesses' expenses and diabursaineutß.