LAW REPORTS.

Dominion, Volume 2, Issue 336, 24 October 1908, Page 9

LAW REPORTS.

FULL COURT. DAMAGES FOR WRONGFUL DISMISSAL. •MANAGING-EDITOR- v. NEWSPAPER COMPANY. ; ' , . NEW. TRIAL REFUSED.' Before ■ tho Full Court yesterday, when Mr. Justice Williams (president),and Justice Denniston, Edwards,- Cooper, and. Chapman were present, the hearing of an application for a.new trial of the case between' David Smytlie Papworth, of Lovin,.; journalist (plaintiff), and the Horowhcnua Publishing Company, Ltd. (defendants), was concluded. Mr. D. M. Findlay (with him Mr. H. H. Ostler) appeared in support of the application, and Mr. A. Gray (with him Mr. M. Myers) to oppose.

Brielly, the facts were as follow: —Papworth sued tho company: for £500 damages for 'alleged wrongful dismissal from its employment as manager, editor, and reporter of its newspaper, the. "Mauawatu Farmer." Papworth cfeclared'that he was engaged for a-term of three years,' from September 20, 1907, at a salary of. £350' per annum, arid in. May last his services. were dispensed with. The caso was heard before Mr. Justice Chapman and a common jury at.'Palmerston North on September 17. The defences raised were 'breaches of agreement and neglect in the discharge of his duties. The jury awarded Papworth £225 damages. Tho grounds of the' application were that the verdict was against the weight of evidence; that the. learned judge was wrong in leaving to the jury. the. question whether tho company was justified in dismissing Papworth without leaving ..to. the jury- issues of fact upon which such- justification was alleged to be based, and should have, upon the facts admitted, directed the jury to find for the. company; that, material evidence had been discovered since the trial (which could not have been foreseen or known before the trial) that Papworth was, during the course of his - employment with the company, carrying on an advertising., agency business on his own account, without the knowledge or consent of the company. On behalf of,Pap-' worth an affidavit was filed in which it was stated that the moneys which he. had received in connection c with. advertising business were duo to him before ; he, was ■ engaged by the company.-.. On behalf of the company argument' at length was advanced, by iMr. Findlay on the previous day. Mr. Ostler now dealt more particularly with the contention that; the verdict was against the weight of evidence. The appointment of Papworth. as managing director was, he said, in'furtherance of "the contract. .Mr. Justice Cooper: Your. point is that his conduct and duties as managing director were so intimately connected with his conduct and duties as manager, editor, and reporter that it is impossible to separate one from the other? . .. . Mr. Ostler: The company clainis that it was entitled to rely .upon Papworth's misconduct as . managing director as a reason for dismissing him from the position of manager, editor, and reporter. Tho Court intimated-that it did not think it necessary to hear counsel for Papworth. 'The President (Mr. Justice Williams) observed:' —" The'defendant company asks for a new trial on.two:- grounds: (1) tliat tho verdict was against tho weight of evidence,; and" (2) _on the ground; of, the discovery of ! new evidence. Tlio 'principle on which' a new trial is granted bri the'ground that the verdict is againstj'.the'-weight of evidence is well established. In tho . present case there is np question but that the jury was properly directed. They could-not have failed to understand the questions submitted, to them. From a perusal of tile evidence, personally lam satisfied'it was .opento' the jury as reasonable; men to have taken;,the view which they did take.. It may. be that ( if tlioy had company, their verdiolr could-not liav'e', 7 been- impeached. As I intimated at an earlier'stage, it seeiris'to me it-. tpi'tlieijury'tb take the view that-the compariylH'fice'ahsiQUs ■to 'sell the property aniiiitp-vgefliTidwojE* Pap-iworthc-'for the purposed oft facilitating,- 1 tho sale. I don't say for a-moment that'that view'is the correct one, ;biit if;the'jurj took that view they were entitled to' so. ' And tho rest is simple. . It. jiaturally.!',followed they looked on tho exc.uses of for dismissing Papworth as merely' fictitious and fanciful. As to the second ground, that new evidence has been discovered,' the- latest caso on the subject is Young v. Kershaw, reported in 81 Law Times.Reports. Tho rule tliero laid down by the Court of Appeal in England is that a : new trial' Will not bo granted, on that, ground;'--unless' the'fresh--evi-dence, is so' conclusive 1 . as 'to.lmaike-: it' practically certain that:'- J .theverdict I 'would' be different if it were adduced:;. That certainly ,can?t be said of the evidence which' it is suggested is forthcoming in tho present case. The evidence, if worth, anything at all, is merely very slight. evidence in corroboration of some part of' the company's case. I think, therefore, that the motion for a new trial should be dismissed with costs." Subsequently his Honour, after consultation with 'other members of the Bench, said the remarks which he had just made were the reasons for the judgment of the Court. The motion for a new trial was, therefore, dismissed with 15 guineas costs (to include second counsel) and disbursements.