SUPREME COURT.

Press, Volume XLIII, Issue 6493, 15 July 1886, Page 3

SUPREME COURT.

BITTINQS AT NIBI PBH7B. Wedhebdat, July 12. '[Before his Honor Mr Justice Johnston.] The Court re-opened at 10 am. SOBXHBEH V WHITE. The. jury in this case, who had been looked up all night, were brought into Court.

In answer to hia Honor, the foreman sadd there was no possibility of their

agreeing. His Honor said that in this case the jury would be discharged. Mr Byrne applied that the case might be re-tried at once. Aa the facts had been pretty clearly brought out at the late trial, there need be no large amount of evidence taken. As he had his witnesses here from Little River, he hoped that his Honor would allow the case to be tried new.

His Honor thought it would be more convenient to put off the special jury case on Thursday, and allow all the common jury cases to be got rid of. It was ultimately agreed that the case should be re-tried to-morrow morning, Bray v Doubleday (special jury) being postponed.

EJ»IwHT V STMBS. [Before a jury of fonr.l In this case John Knight, dairyman, of New Brighton, was plaintiff, and W. H. . Symes,' medical practitioner,: defendant. The statement of claim alleged that the plaintiff was carrying on business as a dairyman at New Brighton, and that in January last an outbreak of dysentery took place at New Brighton, and the plaintiff,; in his capacity of a medical practitioner, attended several-of the patients. The statement of claim went on to allege that about this period the defendant spoke falsely and maliciously of the milk sold : by the plaintiff, as under:—" I have found tbe cause of the disease. It is the result of the milk being brought into the place by Knight, and is owing to the cows drinking out of a dirty duck pond. I have been to his place, and found this to be so." By reason of this statement the plaintiff alleged that several persons left off taking milk from the plaintiff, who was thereby greatly injured. The statement of defence denied making the statements set ont in the statement of claim. For a further defence, it waa alleged that if they were mads at all they .were made by plaintiff bona fide as a 'medical practitioner, and in discharge of his duty as such, and in no way to prejudice the sale of the milk vended by the plaintiff. His Honor raised the question whether this last was a defence at all- The defendant bad not pleaded the truth. Mr Martin said be should submit it was. Mr Stringer briefly opened the case for plaintiff, and called evidence. John Knight, tbe plaintiff, deposed that he had been carrying on business as a dairyman at New Brighton for ten years. In January last, Dr. Symes came to his place to examine into the cause of disease existing in New Brighton. He examined the tins and pails and also the dairy., He asked for the names of the persons served by plaintiff in New Brighton and Christ- ! church. He went to tne pond which was formed by the overflow of the artesian well, and said he thought he could smell a smell. Witness told Dr. Symes that he did not believe there was anything at his place that could cause sickness. The cows were brought up for Dr. Symes to Bee, and he stopped to see them milked. When he went away he eaid he would do them no harm; he would do then. good. The next day—which was a Saturday—when witness went out, three or four milkmen were serving on his round. Some of witness' customers took milk that morning from him, but not the usual qaantity, and some took none at aIL In the afternoon witness sold none at all. In cue day witness lost allot his customers—between twenty and thirty—but four. He used to sell in New Brighton alone from twenty to twenty-two gallons per day, at Is per gallon, and it tell to about three pints per day after Dr. Symes' visit Mr Pamirs?, one of witness' customers, told him he was waiting for the doctor's decision. Other customers who had ceased dealing with witness told him they had done so in consequence of the report of Dr. Symes. His Chriatcburch businee* had gradually fallen off, but he had no explanation as to this. Ocas-examined by Mr Martin—Witness heard that the bad cases, of dysentery in New Brighton in January came (rom Chr-st-hurch. Dr. Symes wasted to get the duck pond removed. There was no mud round the ground in January. It was quite dry aU tbe way round. The pond was about seven yards from the dairy and about four or five chains from where the cows were milked. When I>r. Symes went over the dairy there was a little milk ia the pans. There was. mlao some j -aeon in the dairy. Two persons ia New I

t , . ■ r-SS ... z Brighton lad complained of the milk. . One of them called his attention to the mflk going sent. There was no complaint as to the milk not smelling sweet. The. milk was not put in the dairy at all, buttoken out from tbe cows. The cows produced forty-six, and sometimes forty-eight, gallons per day. Witness did not keep pigs. He might have had one or two calves. As tbe oowb calved, the calves were killed, skinned, and the carcases buried. The pond is now just the same as when Dr. "J"* B -* w it When it was wet they put a.little sand round the ground to enable them to walk along to tho stable. He could not say how many loads of sand had been put there. Witness remembered Dr. Patrick visiting bis place. No sand was carted between the visits of Dr. Symes and Dr. Patrick, nor had he touched the ground since Dr. Symes saw it. Witness kept ducks and geese, and there was also a poultry pen. He couldnct say if the ground fell from this pen to tbe pond, but there c was nothing to come from it. There was a pigstye, but the fall was not to tho pondHe had to get pigs to nee up the milk. There was no drain from the road running into the pond. Mr Stringer objected to the evidence, as it went to support the truth of the allegations of defendant, which had not been pleaded. The plaintiff had set up that the milk was pure and uncontaminated, which had not been denied by defendant, so under their code he admitted it. His Honor agreed with Mr Stringer. Mr Martin said what he was calling this evidence for waa to show that Dr. Symes bona M« believed what he stated was true,. and that he had made it without malice, so believing. His Honor said that oould not be done.. In the case of Bryce v Busden it bad been solemnly decided that the bona fide belief ot defendant was not sufficient. The evidence might perhaps be given in mitigation of damages. Mr Stringer submitted not. TCase cited in support, Speck v Phib'pß, 5 M. and W. 279.] Besides, under the rules, to get such evidence in as mitigation of damages it was necessary to be pleaded in the statement [Case cited in support, Scott v Sampson, 8 Q. 8., 491.] Mr Martin submitted tbit he was entitled to ask the question, to pare the way for his defence that defendant had tens fiie belie! for what he said. [Case cited in support —' Bird v McLean, Macaosey's R9ports.] His Honor said this was entirely opposed to Campbell v Spottiswood, Bryce v x&usden and others.

Mr Stringer said the whole question turned upon a matter of privilege. If Dr. Symes was privileged, then he could not prove that he had gone outside this. His Honor said there was no doubt that a medical man telling his patient not to take so and go's milk would bo privileged. Mr Martin had not set up that this privilege existed. Mr Martin said that the statement had been made by Dr. Symes in pursuance of hi* duty. His Honor—To whom P Mr Martin—To the.public generally. He fully believed what ,he stated to be true.

-. His Honor said that was juat the point which was. unsuccessfully labored to be established for the defendant in Bryoe v Euflden. He did not think the evidence was admissible. If the defendant' meant to allege the truth of the statement that the milk was impure, he should have stated so in his defence; then the plaintUE could have oome prepared to disprove this. But the defendant not having done so, and the plaintiff finding nothing on the record alleging that the statements were true, the latter could not bnt suppose that the purity of the milk was admitted. He should rule that the evidence tending to show tbe truth of the statements made by plaintiff could not be received even in mitigation ot damages. Examination continued—Dr. Symes said he could not guarantee plaintiff against loss of custom if he filled up the duck pond, but said he would do bis best. Witness told Dr. Byrnes that he would stop the overflow of the artesian, and that in one week the poad would dry up and be covered with green grass. By His Honor—A report by Dr. Nedwill was given as to bis examination of the plaintiff's premises. It waa a favorable one. •■■•

Charlotte Knight, wife of plaintiff, gave evidence as to the loss of customers through the statements of defendant. Mrs Melville told her that she could not take her milk, because Dr. Symes had given her place a bad character. Mr Palairet said that he was waiting for the doctor's report. If it was good he would take the milk; if nothewouldStake no more. He did not take any more. Mrs Hamilton said she didn't believe what Br. Symes had said, but she wouldn't take the milk until the matter was ole&te 1 up. Ihe witness then went on to give the particulars as to the loss of custom, and corroborated the evidence given by plaintiff as to the falling off of tne sale of milk. The people at New Brighton were frightened to take the milk now.

Cross-examined by Mr Martin—Thepopulation ot New Brighton has not been. bo huge since, the time ot tbe disease. There were only four customers in New Brighton; there were over twenty in Chriatchcrch. About eight o* ten gallons per day was sold altogether in Christchnraa, and New Brighton by witness. Dr. Symes gave a written report on the dairy. When witness lost her easterners she went to Dr. Symes and asked for the reason. He then gave her the report. Ec-examined by Mr Stringer—Witness had to make butter o! the milk which they had left. Making butter was not so profit* able aa selling milk. Before they got the pigs they haa to bury the skim milk. James Eow.e, storekeeper at NewBrighton. On .January Z6tu witness saw a paragraph in the Pases newspaper. Shortly afterwards witness saw Dr. cymes, and spoke to him about the paragraph, pointing out that it was likely to do a good deal of injury to New Brighton by keeping people from coming there with their families. They would not be likely to come to a place where the paragraph stated 'it was likely an outbreak of disease would take place. Dr. Symes esid he believed tho , jdace was as healthy as it had ever been, and that as a medical man he had donemore than any other for New Brighton, by sending people there for their health. Witness then asked Dr. Symes what was the cause of the disease, ana he replied it resulted from milk brought into the place by Knight, which was diseased, by reason of the cows drinking out of a dirty duck pond, and that there was no doubt this had caused the outbreak.

By His Honor—Witness was not a patient of Dr. Symes. Feeling annoyedat seeing the statement in the paper witness asked Dr. Symes about the matter. Examination continued—By Bright, as referred to by Dr. Symes, he knew that the plaintiff was the person. Dr. Symes kaid a reporter had been to see 'JAm and he bad given him some information. Cross-examined by Mr Martin—Witness spoke to Dr. Symes first. The information Dr. Symes gave was in answer to questions asked by witness. By His Honor—Witness spoke to Dr. Symes because tbe paragraph, referred to a doctor attending some patients there, and he had seen him before in New Brighton.

E. M. Sef ton deposed to keeping a store at New Brighton, mad also having boarders. In January last Dr. Symes called on witness.. He was not attending witness, bnt came voluntarily into the store. He said, "1 want to see the lady of the house." Witness said she was the lady of the house. He then asked if witness knew of any sickness at New Brighton. Witness replied in the negative, except that she knew Mrs Baldwin's child was ill. He then asked witness if she knew of any other cases, aad she said no, except that there were a few people suffering from diarrlcaa. ■■ Be then' asked witness whoee milk she took, and she said Mr Knight's. Dr.Sjnws asked her if she had any fault-to find with' tins milk, and she replied none whatever. * Ha then asked if the milk kept well, afid she replied that it did keep weS. He Bald* **I*s» been told it doesn't keep well" Witness said aha thought it was people's own fault through having andean jugs. Witness said, " 1 am certain that it is not Ur Knight's milk which is __£__«

jst Xasr Dr. ByawßrssaaV, as* so snore of thsJ»wana*» tsssist it to tbe a-Qk." They wan easy, ■mwlrag. of Mr Kaigbfs e-Sfc. After -bat w-ba-BB did act like to take the milk, aad t«s people boazdiag ia her house told her fa throw Knight's milk away. Oral a lainiued by Mr Martin—One of those telling her to throw the milk away was one cf Dr. Symes' patients. Witness - was positive Dr. Symes used the words "We have traced it to the milk." Dr. Symes wrote a statement which witness read. [The statement waa read by Mr Martin, which oaa'tted the words "we haws traced it to the milk."] Witness _k*w -ea-e-abered that aha had Ti***ir* ttkaa» words. They came to her reooLwctiocr afterwards. No oaa spoke to her aboutiL Thai dosed the esse for the pE-"^** Mr Martin then addressed the jury ia opemngthe care for the defeadaate. aad called Dr Symea, who stated that ia fcO-wiag 'his profcasicn he visited New Brighton. Ls. January Ust there was aa outbreak «f dyacntery in New Brighton. He had several patients, at whose request he endeavesrad to iaveatigste the eanae, aad he vis-ted Mr Knight's place. He saw Mr Bowe afterward*—about a week or ten days after tbe offettsrve paragraph appeared ia the Peemi He heard Mr Bowe grre his aoaoaat of the court nation Mc (witness) was driving home from Mrs Baldwin's anew*. A man came from a bouse aad stopped aim. saying. "My name's Bowe ; Pva, or We're, beam much annoyed at a ■ aaragtaph fa the Pxxas newspaper," and sawonbßd it. He asked wit-teas if he was the easee of its insertion in the paper, aad tl_»wi-_s-Bianswered "Certainly not,l am as mock annoyed at it aa you are." -That's strange." he said, "because I sramt to the Pus* office aad they told em they got the information from the doctor sttoadrng the patients." and aa the witness did sot know of any other doctor, fee attributed it to witaesa, who then explained how the mistake arose. Bowe seated aha whether he thought the place was unhealthy, and witness anaaaced "Be, I have the same opinion of New Brigeton as ever; 1 consider it the haaiiHrievt place ia the country." Ia reply to a qacstioa aa to the cause of the disease, •tineas did not say it was brought into the plans by milk from Knight's cans, aad did not say, "I have ao doubt as to the cause of the attack." Tbe evidence of Bowe {in she* matter was absolutely incorrect. He weald take his oath he had never made the -filasniiiiiittß he was alleged to have made. On— iTiinTiHj- — A reporter of the Paans had been to him, and be bad glean the reporter .-formation. Witness toad aim tbe reports he hroogat were untrue, bat gave him the number aad Sanaa* of those he was attending, aad, ia answer to bis question, said see was taqoiring as to the cause wf lbs iV—sail HedidnotteO'himthat be had traced the cause to tbe mOk, aad said abm tfest a* did act want to have anything todo with the paper or be mixed up with si. Bowe said the paragraph bad prev«Bted visitor* going to New Brighton, assA Ssßsased witaesa of originating the fsataprantt. After stating that he waa •aaoyed at the paragraph, witneas added tan* if Sows would call a publio meeting las would give asafilsTtfw, and state the eaaaa of the 'fffmwas* Ia farther ocavacß*tisß witaaaa ramarked that his patieats had stated that the milk was putrid, and lotspcag bSM-ly, aad that he was endeavoring teaecert-da -he truth of these stati meats. At th* request of his patients he had been t» aas the dairy, but bad found nothing •arias there except a stinking duck pead. He said also that there EBBgbs be other causes, and thought Haas aasy should be investigated. He fsaaMsV JaVowa very bard to persuade the *****•__• at New Brighton to meat together spd ansa the sucter investigated. He _rid asm he had been to Dr. NedwHl, who eoadd act act, as the health officer—hip had learn abotiabed. Wl-seaa told Eowe that ate beat thiag for the restd-uts to do was «»«ls*c the mstriet cf such a stigma. He (*«_•«**} said that the poad aad mud were m jmsstlila aotxios cf coot___i_tafc_sg the EKtO, cm aaxmat of their being only a few yards from the dairy, aad oa account of the very dry weather having rendered float -S-O-tve. Mr Bowe was so excited as tha time that witneas did not think he ■—11 as anil wl the eonvarsatioa. Witness did net remember telling any one positrvary tha* the milk was bad. He did not tot*. Mr* M_lt_J«. The tetter produced looked Hk* bar writing. .. Mr Martin, who called so other wilausaea, aba* adarsaaad tha jury, aad comaMntod «at-WavM-_er. MxfSttiujiei hafhag replied, T~as Hcemt tajoßßed up, aad the jury aetkad to co-aider -hair varSaot, AtJulO *-**-, the jury ntsxasd with a verdict fer SsEBBW **WKaw__»Q_Rll-» HisHmraf aatered up judgment for de-iaasE-Ktwith oasts oaw scala.* maum v rax—cm ah n othees. ta tikis case WQBam Mcßae, of Kai- *■ toast*, w_ajd*ißtiff, and Wm. Recce, John __e*id FJraakiah, and John Anderson, of CTaxßrtfihurch, aa exaeutors of the wiU of tas tete Edward Eeece, were defendants. Oat the _»__ June, ISBS, an agreement waa catered into bataeeu the plaintiff aad Oeorge W-Ebser, as agsat for Edward &eeep, to destroy the sheep running on the Wsdpapa run ia the province of MarlBoroags, McSae to receive Si per skin above eight months old, delivery to be j E_ada toramaaager, MrG.,W-_mer. On . 4f»S Ifith September, 18S5. the contract was varied by eoaseat, the plaintiff being re•trJcted to killing the sheep oa the reserved paction ef the run, allowing the Govern- . zaSßt sheep-killers to kill the sheep en the -Slid parte of the run. On the -3rd October, ISBS, notice was given by Mr Geo. W__-_ar, as agents for defeadaate, that theyrefused to allow the plafntiff to carry «B his contract, whereby the plaintiff aUsged that he had test £375. The defiiuifaiiti had paid £40 into Court in aatisfactie* of the claim, which was for J8275 Mr Harper, with him Mr Haffiday, appeared fw plaintiff, Mr W. V. Millton for 4aaWewa B S_hQsV-B-Va(» Mr Harper having opsosd the case. The plaiatiff, who stated that there wan aEflj>jcsedtobsalW)ahsepoath»rqa. Ha esctes-diato the agreement prodaced. assl fsxrx-wKkd with the work of destructioa of cb* sheep oa the tUlowiag day withaaaistaars? Within three months they killed WOO -all the abaep within the fesced part deliver oel the skin*, aad received pay. -seat. After ten days* work outside the «sariM,aaoa of the late Mr Eeece aad Mr w3£s-»ir tc4d him that they could not pay Hat for any mere skins oa account of Mr Bseee's death. Plaintiff and Mr Willmer aad agreed to allow the Government men to k_U cm the Peninsula and Black Hill pestian, in respect to which he was rut essnedsg. The Gorrrameat men had killed ISI4 abaep, Witoaa-could have done the •SB-S bad be not been stopped. Had be feIMS allow-sd to coatisua he could have stale tend par head. He reckoned there wpmafOO sheep on the run when he was TW foSewißg witnesses were called in seaport erf the piaintUTs eaar—Geo^Lyford JBaasH>w-B-GMa tTi ■ ■llr MiQton caDed no eTidesce tor the detsaea, has submitted that the damages -bcaia bck gives on the number of sheep IBEdntiffcouid probably have killed by the eadef November, aad argued to show that Ptilsitiiif could not have destroyed the -Os-aber he statad he eoald have done. His Hoaor, after constder-tion, gave juagmeat for the plaintiff for -3120, ex-c-asiva «f the amount paid into Court, with east* oa tha lower scale. TJ» Cowrt adjan__tad at SJtO p-m. until 10 sua. to-day. ■*_■■»-■-■-■-«-■_, Jkawuj-Am Isczzanrr ax* a Cb-wsatr.—• ta aiiiaiun isri-tent oma_redt»ceatiyata i-niiiliafilaigua. StgaawFo« aad jaat aVgawasd-steacst verae cf P_Bsati*« "The a^Bttrn'mrhmx baby in the hall began to fajs'lisalllsii iif inT■miMwwiiiiL TTaiii T •"sirtr it that wh_s_ ataaks apoa satats essrP" The sigaor, asabte to ooofjMl Stis Kktbls -seaSiss, bowed and lift i _Hsa_aV < T*s_i_a a_t_m___\\W'' •BBBacaaepaiatassdawgaatl antu teats aai«Mra taatr fscss.