BERTLING LIBEL SUIT.

Dominion, Volume 3, Issue 769, 18 March 1910, Page 6

BERTLING LIBEL SUIT.

LIVELY PASSAGES.: WfTNESS COLLAPSES IN COURT. MUCH "ZOO" HISTORY.

' The defence in/the libel action, Bertling .▼. Norton,, was ..opened, yesterday, and a large number, of/witnesses were called. ■;lie';. case; \ which ' involves 'a: claim for ■]£2000. damages, ,is -being, heard 'by. the Chief' Justice,. Sir 'Stout, -and-a special juryr of twelve. .;■.-' '.Mr/ H. H, Ostler and. Mr. E/8./Sharp appear.'ior'"plaintiff, .Albert:.Ernest ILouis Bertling,' superintendent of, the - Zoo •; at Newtown Park ;'-Mr.. T., M.. Wilford and Mr. A: Dunn for the defendant, John Norton, proprietor ;of;a newspaper called "New -Zealand Truth,'", in which certain statements -regarding .the..-,'' plaintiff in connection:.with his - prof ession, and alleged ■to ;be libellous, were published. The case • for s the plaintiff was that : ihe articles complained of injured him in his profession, in that they alleged .that he was- incompetent,' and lacked ■knowledge of, the .proper: treatment and breeding of wild animals. The defence was that the statements published were trueV and embodied fair comment upon i matter of public interest, namely, the conduct ,of the .'Wellington' Zoo.

Judge and. Counsel Differ. On resuming,. Professor H. B. Kirk, lecturer in biology'at'Victoria College, was; called, to give evidence of his observations of the Zoo, as'/'a member of ;the. Zoological He detailed particulars of an/autopsy/which he had -.made', upon'the/body/of/a' Russa hind, received frbm-'-the Zoo. was' well ; : there The animal had.not'been.starved. 5 ;'Death had (been caused, by a - rupture /of-the lung, ft'he wound,.'.which -'appeared to be an .old: one, had-brbken out afresh, possibly Ithrou'gh a convulsion'or'violent exercise. \ In cross-examination, by Mr. Wilford, Professor Kirk-'expressed' the opinion that,': if a. large amount of unsuitable food. were' forced upon a reptile while it -was hibernating, and would /not take food willingly, death might result. •' Mr. Wilford: Can you - tell'me if Mr. tßertling is a scientific zoologist? You lhave • had conversations with' him, you (know? ,' y '. - . . ! Mr. Ostler interrupted: I object to tthis. It is the very question which the [jury have to decide. ■•■: .\ His Honour (to the witness): Have you-j lexamined Mr. Bertling, to say whether ihehas a knowledge of zoology?— Witness: PNo." ■- .:-'•■-:::: :'-./■■/, ■/.. Mr. Wilford, explained-'that he, wanted (an expression of ■ opinion '.from /Professor ■Hirk as;! to . ; ;Bertling's'-abilities.'..He' 'wanted■ to;-p'rove that■;Bertling' was/an' , impostor,. that ..he .'was -not/ a..-zoologist,, and: therefore, that.-he; was 'unfit ;tp;'l66k .after wild, animals/'./•/ '■■ '■'',;■• -/i'.'//"^'/;/ His Honour:'Do yoh; mean-to':, say.-that' ',a man is hot .'capable l of -looking after" tanimals unless he is ; a zoologist?' Do you ;say •'.that a-,man'-;must -,not,-f eed : 'horses 'nnless • he--.is'-a ..-, veterinary/..surgeon? ■(Laughter.);/ /' /! ;' 'V-,-'r■'.'■.■■'::-"''."'-■ .'■'':.'■■'■'■ Mr. Wilford:-1,, personally,, would'not toe prepared'-'to. keep. 'an:'iguana ': alive: kWould your Honour?./.; ! 't-:' .' ;;.' ■.' His HonbOTVjl idon't'-vikwp 4nals. ; w'-//;//;/ -./;:'//!;'-/;'-.''/■''>;•'■'• Mr. Ostler '.'(to';:Mr.'..,Wilford);: ;■• How iabout>a,;mQtor-car?-« ; ; ;;'•..'•'* ::/ •■■;;/-/; ■* ' . Albert ; l,Troerove;-'.theV./'next'>- .'witness, ietated that-he/was - theV-proprietor ,-'of ipublic. gardens- and: a -zoo at 1 Ngaire, >beStween'.Eltham and.: Stratford; in Tara-' maki.; /'.He hid .had; the' .zoo/iir 1 five; years,. land found that'the'_ mortality .'was fairly ■ 'large. He had shot through /Portuguese, jEast,- Africa, and had hunted the larger icarriiyora. He spoke in-appreciation offthe progress, condition, and management i«f tie Wellington Zoo. ■-.. More About the Lioness. A keeper at the Newtown- Zoo,' John ILangridge,' stated that the keeping of. IwUd/animals had,been a life-long 1 hobby, htith' him! He had been a member of Hhe Woolwich Natural History Society. ■ At Newtpwn.-Park'.it: had-' been one- of his duties/to feed; King Diek,, the lion. The lion's allowance of-meat' had.been : reduced two days prior .to his being Imoved' to another cage, but'.he was not [drugged. The lace monitors had had to [be .fed artificially, .but they were not Eited roughly. -Jackson, one of the as : ants, had used an iron file to open jaws of one reptile,' but no teeth, (were.'broken. -Bertling stopped Jackson on this operation, and Jackson did not .seed .the reptiles again. • , , To Mr. Wilford: A rhea died on Way last He could not assign the cause jof death. • He was not present'when the iKoh -was shifted, and. could not • 6ay whetter it had been knocked about liadly/ . There was no appearance on the lion,-of ill-treatment, however. Evidence taken on commission in Sydney was read, the statements being those of, : Professor Anderson Stuart, professor of physiology and dean of the faculty of ;medieine at Sydney University, and AlIbertC. Le Soeuf, curator to the Boyal /Zoological Society _of Sydney. The lat|ter stated his opinion as ■to Bertling's qualifications. : He; deposed,; also, that it iwas'iwell known, that ;! certain reptiles JTHwlds live for a season without food. IDtrring that time, the forcing of food ttnto their stomachs. might damage their ■teeth,':and.mouth and cause death! Kegarding:.Wirth's lioness, ,he stated that ithe animal suffered ,from rickets, and .would ■ never make a complete recovery, lit would, however, still be; fit to keep and breed-from, Eickets was a softenling • of; the bones, and led to deformity land.paralysis, as in man.',-/ '

There was also a statement •by Her-i bert. Butterfield; printer, of Sydney, to a. portion- of which'evidence Mr. WilIford' objected. His Honour remarked fthat.-the. only effect of the evidence was tto prove, circulation in .Sydney. A -sworn statement .by,'' John. Beard, (bird 'and animal dealer, of. Brisbane, jsaid secretary of the Queensland Z3ologi.cal Society, was read. The deponent stated that, he had received copies of .papers'containing the alleged libels. He |had not met Bertling, and did not know

ihis qualifications. He had been sur■prised to hear of BertlingV obtaining ithe superihtendentship of. the Wellington Zoo;: "This closed, the case for,plaintiff.. '. Chief Witness for the Defence. The first witness called by Mr. WilSford for,the defence was Thomas William .Arthur, "who,said that he had had fif;teen years' experience of keeping wild [animals, and he had seen all the principal wild, animal' collections in the * world. He'had been at the Blackpool Tower in charge .of the animals and had (been' out'. in 'India "after wild animals" when he was a boy. He had been selecting animals for Mr. Walter Rothschild," ■and ha'd testimonials from New York. Mr. Wilford: Ton are supposed to have I a particular "eye" with wild animals?— 'Witness: "I don't know; I am very kind (to them." ' '• You get on with them?—"Oh, yes; first class." You applied for the position of superintendent that Bertling got?—" Yes." , You were among the 174 applicants?— '"Yes; I know how many applicants there were." You were among the last threo?— "Yes." ■'.'■-■ Was Bertling among the last three?— "Not to my knowledge." His Honour: You were not present at the selection./'(To Mr. Wilf ord): This is only hearsay. . Mr. Wilford: Bertling made admissions to him. . Mr. Wilford (to witness): Had you known Bertling ; previously ?—Witnoss :' "I'saw him in London once, when I was j at the 7.00." What was he doing?—"Ho was in the ' office—a clerk." At this stage, Arthur complained that he was unwell, 'and remarked that he had lost his wife a week ago. He was given a chair.' Mr. Wilford: Bertling camo to your house on his arrival at Wellington?— . "Yes." ' You wero friends?—" Yes." He told you tliat he was not among the applicants?—" Yes. He said: Tou iellows-had to .send in a photograuh, and

get a doctor's certificate. • I simply had to send a sixpenny telegram.' He said it' boastfully.'' His' Honour: I'do not see how this ia relevant, because, as to. what was done, you will have to call-witnesses from .the City Council.

• Mr. Wilford: Was any reference made to you, ■ by .Bertling -in regard to Mr. Donne ?—"I said: 'You must have had some good influence' at :the back of you.' ■ Ho'''replied': .'I have no. friends in Wellington, axcept Mr. Donne.' I said: 'You had sufficient, anyway,- to get you .the. job.'" , • • A, Journalist's Responsibility. About'these articles. Did you see them in tho draft before they were'published? —"Yes." Were you asked anything in reference 'to their truth or otherwise; before they .were published ?—"Yes." . And did.you-state that they were true?. —"Yes.": ;

, His/Honour (to Mr. Wilford): Don't you see'that, if'a newspaper publishes something, that somebody says is true, that is no justification for the newspaper publishing.it? ./ . .-.--.• v ; Mr. Wilford: One of , the first-things we have to show is bona fides. His Honour: Yon have parted from that, because you have, by your plea, said that the things are true. Mr. Wilford:. We have-not pleaded justification. ••■■-.•", His Honour: You have pleaded that they are true.... Mr. Wilford:'Will your' Honour pardon me, we have" pleaded fair comment. His Honour: You; are bound to prove that ..they' are'true.' It'-is not enough to say 'that a" man said .they were true. If a journalist chooses to publish a thing-, and' he. is;-. th(?a : , eKaigwl with publishing a Übel,-.he:nVay/say/. "I;published it bona fide; . I shall'now make inquiries,' and if Jt;is/not true/I/shallapologise." If he goes on to say,;'Tpublished-it; I thoughi it was. true; and:.l. say,"now that it ia true," arid does.not-prove,the truth, his contention of fair comment'fails. Mr. Wilford: There is no defence of justification in this writ. "I am prepared to give authorities _on the matter, but this is rather 'an inconvenient time to argue it. .-...•--■.; %■;/;': His : Honour:;.Veiyjw.ell;-.go on. In ;fujtKer'S,'cross-eianiination, Arthur stated that 'a).'rep6ftei}.caine.': to his house .w'hife;'-W^v. - over an arHcle/to. l 'hihi-//He'. instructed the reporter as .to/, the'portions i that he considered' untrue;';and/the/reporter struck out- those-passageis; i-/'/^-';/';! Mr. \Wflft>rd:'VWas-. a 'leopard offered to he was going" -to" make''an-'offer ":'of" a leopard to the.JZpb." --...-...<.'/'•

His. Honour: That is not evidence. Mr. Wilford: I admit.it at once. It was but before I could stop it. Mr. Wilford: Was -a leopard lost to the Zoo?—Witness:"Yes. through Bertling sending, the lioness'back to., the circus."/ '.'■;. ' Mr. Wilford: In a temper? Witness: In a box. : (Laughter.) ■;•■'.'.• Deaths: Stag, Emu, Peacocks. • -The.lioness,/.according..to 'Arthur, was shedding, its..coat arid, teething at the •time:it-.yeas sent to .the: Zoo.'; It was only a.;ye'ar and..eight/months/'old. Bertling him ..before ;the/lioaiess arrived that..he,would'-'.nob have'it,;', and when it into ,the/cagej/'arid',6aid,' that>it-.'was suffering . !frbm /paralysis -m/the/hindquarters. He 'said:'-."Send..her!back: at;once;" and wit'ries3vfol!owed put '•■ these: instructions. ;'"Next,day,'' continued Arthur, "Marco, the trainer;.;got;.her onijin the ring at the oircus,' and she hopped about on the sawdnst"like mad:'" • .:•' :■ :• ~ltr. .Wilford: 'Is it a fact ..that Wellington has: lost :the lioness :and the leopard through. Bertling "Yes." ■ BeTtling ;knbw/anything faboii't."lib'ns?ff.''He a'dniitied;to; ine; that, h6'jhad / :.hid.inb'ei'perience - with:bi'g ,aiid : .that, l he had always looked,'after:';birds.":: 'Then/heVsaid, '111 let. Jackson .take. care. birds, and then.-I.can: look; after them.'".- / Witness, .weit.-.on. to :state, that 'the stag .had "(lied/of ';6tarvation.:, The male enyu, \}vr6ngfnlly .put in with another, killed the younger/bird. 'The' peacocks' had died through receiving only hard food while moulting. The iguanas at the Zoo were the. coinmori-: Australian lizards; they lace m&hitorsf./as labelled by Bertling. ' There' were 'no-monitors at Newtown Park. The iguanas had been badly treated."- Food had been forced upon them, and he found them bleeding and- frothing.-.arid-their-. -teeth.< -missing. The iguanas did- not- need any food for six months of the year. •■• 'On- resuming after the'- luncheon adjournment, Arthur itas allowed to stand down, in-, order- that the -Rev. D. ,C. Bates might give' evidence, he having;to go on duty at i p.m.

Mr. Bates Shoots the Dingo. ' The Rev. D. C. Bates, Government meteorologist, said that, as secretary, of the Wellington Zoological Committee, he had taken a great interest in the Zoo sines its formation. He had been':,the first to move for the establishment ■of the Zoo, and had obtained many gifts-of animals more valuable than those that had been purchased. There had been a very marked-improvement in the condition of the Zoo during the past three months, and it was now at high-water mark; Since February of last year, when he found that Bertling was untruthful, he. had had no dealings with him. When the Zoo was established, he obtained a lion, and was anxious to get a mate for the beast. When a troupe of circus lions came round, he desired.to purchase a young lioness,; but Hagenbach's man,, who was in charge of the troupe,' said that ) he would not take .£IOO for it, as' it was a particularly well-bred animal. The lioness came round a year later,-and Mr. Wirth offered it to the :Zoo. 'It was, taken .'up-.to"the part, and, - next> day, witness 'saw'"it ''at the circus menagerie again; running about. It. was active, but was not in good condition. He disagreed with Bertling that it was paralysed; or suffering any pain. It-was just getting its second coat. Bertling had said that Wirth, in: offering the lioness, was trying "to take the committee down." .Wirth had agreed to sell the beast, for .£25, the amount to be paid in 1 three' if'the'ahimal was alive and well. Healso offered the lioness for nothing, on condition that he received the first pair of cubs. Bertling, however, said that "he "would hot'havo' it as a gift." Regarding his appointment, Bertling said to witness that he had had no difficulty in getting the position. He simply sent a telegram, and"forwarded neither a photograph.nor a medical certificate'l While' they were friendly, witness had taken BertlingV part, publicly and privately; on every occasion, thought well of him, and/hoped'great things of the Zoo under his care. Turning' to the iguanas, Mr. Bates , said. ; that monitors wero South American reptiles, and the name '.was wrongly, used -when applied to the Australian iguanas. _. ..:_ K . He /had. not seen the iguanas' fed, but he had noticed some putrid-pieces of meat lying- in- their enclosure. On one occasion witness had bbught'a bullock's head and taken it up to the-Zoo on the car, .because Bertling was. so indifferent to the needs of the animals. When the dingo got ■ out; he was; afraid of the' damage' it. might''do, and -he borrowed a rifle and shot it.-Wirth, who was to 'have 'presented''V leopard to the' Zoo, said'later that he would not trust a dog up at the park, and the leopard was not offered. Bertling had a "catalogue knowledge" of the animals, but he was neither scientific nor literary.; He was not ; a practical man, in witness's opinion, and indifferent to the sufferings'.of animals.

.Taken;Ul in Court. •Cross-examined, Mr. Bates said that it did not occur to him that after the lioness had come round on the first occasion it had contracted disease. The lioness had been left in the Sydney Zoo by Mr. Wirth in the some way as Wirth would have presented it to the Wellington Zoo. Mr. Ostler: I understand from you that Bertling's work was-quite satisfactory up .to"-the lioness "incident/''-^Witness: "No; he was discontented, dissatisfied, and did not appear to have much interest in his work.' ' " ' , , Mr. Bates here complained of feeling unwell. He was given a glass of water, and accommodated with' a chair in the body of the court. A few more questions were asked in cross-examination, and the witness again complained of faintness. His face was pale, and he was allowed to retire from the court. Mr. Wilford remarked that the witness had been ill since Friday last. Iguana or Monitor? The examination of Thos. William Arthur was then resumed. The witness said, that Bextlug did not appear • to

know anything about the treatment, feeding, or transport of animals. Acting on Bertling's instructions, witness went to Roseneath to a house where a Mr. Anderson—a Scotchman-relived, and asked about a cockatoo'. It was a sulphurcrested bird, and the man said, "Yes, I want to give the cockatoo'to the zoo: It kicks' up too much noise here, and my children will be able to come up on Sundays to see it." Bertling sent the cockatoo down south with some . other birds':

Mr. Ostler remarked that he would prefer to postpone his cross-examination of Mr. Arthur until Mr. Bates's evidence had been concluded, because the latter was desirous of getting away early to take important observations. - The court orderly intimated that Mr. Bates was ready to return to court again, and cros&«xamination by Mr .Ostler was 'resumed.

Witness stated that, although he made no complaint before the lioness "incident," there had been cause for remonstrance with Bertling, and, after that, the animals were "dying off like flies." A bittern died, and Bertling told a reporter in witness's presence, that a boy had broken its neck with a stick. He had learned later, from Mr. Yuill, the taxidermist,' that its heck was not broken. ..';,'■•',

Mr.. Ostler, in : cross-examination, referred to the Encyclopedia Britannica for a definition of "monitor" and "iguana." The •witness'said that he was not aware that there' was ho iguana in Australia, as stated by the authority.

His Honour,' referring to the matter later, remarked that, according to tho high authority quoted, a zoologist referring to the' Australian monitor would be wrong in calling it an.iguana, although the . animal was commonly called "iguana." "What would a scientific man. think of the abilities of your curators," asked his Honour; "if they found' ah Australian monitor at the Zoo labelled 'iguana' ?" ' The cross-examination of Arthur was again proceeded with. The latter said that the "Truth" reporter, Eussell, who had come'to-see him,.'had known him at Blackpool Tower; Witness stated that, up to ... the : time ■ he, had last seen the lioness, three months ago, it was not suffering'from rickets or from any other disease. ..'■'. . .-.

Bertling's Bankruptcy. - Mr. Ostler: '; You made Bertling bank-rupt?—Witness:'-"I. did not" - Who solicitor. I gave him a power of attorney before ■ I left for Queensland." -. ': ./"•-.;,' ' But' no'' solicitor acts without instructions.—"My solicitor may, go as far as he likes. • I can't "help him.' I know I have to pay for it". (Laughter.) , Alexander Yuill, taxidermist at the Newtown-Museum, stated.that.during the 18 .months. following; Bertling's arrival, he received sixty dead animals from the Zoo, and all the corpses did not come to him. He. considered, this a high rate 'of mortality!'; He considered, that 20.per cent, was a reasonable rale of. mortality. His Honour: And are yon aware that there were - 500 animals here, and that, according to your scale, he would have had to lose 100 a year?—" Yes." His Honour: Very well. Witness then gave details of his examination of the various animals. The iguanas had died of ulcers under the tongue, and an eagle, on reaching him, was covered with vermin. Robert Tait, ; aoting-town clerk, deposed that 173 applications had been received for the position of Zoo superintendent. Applications closed on . August 27, 1908, and Bertling's application, in the form of a telegram from Eotorua, . was received on September 2. He also forwarded a letter of application, but did not semi a photograph or medical certificate.

At 5.50 p.m., Mr. Wilford intimated that he had 'twelve more witnesses to call, and the Cuort adjourned'until teno'clock this .morning. '