THE CARTOON CASE.

Dominion, Volume 4, Issue 1132, 20 May 1911, Page 3

THE CARTOON CASE.

MASSEY V. "N.Z. TIMES." MOTION FOR NEW TRIAL DISMISSED. In the action for alleged libel, W. F. Massoy v. tlio "New Zealand Times" Nowspapcr Company, reserved judgment was given in the Supreme Court yesterday by tlio Chief Justice. (Sir Rcbt. Stout) and Mr. Justice Chapman, in the application made on behalf of Mr. Massoy for a new trial. Tho grounds of the motion wero: — (1) Tliat the special verdict or finding of the jury was so defective that judgment could not bo given on it. (2) That tho learned judge misdirected the jury. , (3) That tho verdict was against tho weight of evidence. (4) That the finding of the jury was not a verdict for the defendant company. (5) That the learned judge admitted improper evidence, to which plaintiff objected distinctly at the time.

Two QU3stions. 'After setting out tho grounds in details, the- alleged defamatory matter, and also the facts relating to the publication of tho cartoon in question, his Honour, tho Chief" Justice, said tho whole question was narrowed practically to two things:—(l) Did the cartoou mean that Air. Massey was rcsponsiMo for the distribution of the ('Black) pamphlet, or had taken part in its free distribution; (2) did it mean that ho had been guilty of a mean and despicable act, and was a liar? There were no other questions that could, under the pleadings, have been submitted to the jury. The jury found tho following verdict': (1) Wo are of opinion that tho figure represents Air. Massey. (2) We aro of opinion that this is a political cartoon pure and simple, and is not libellous. The. figure referred to was tho figure at the side of the cart in the cartoon. In his Honour's opinion, the jury haviug found the cartoon was not a libel as alleged by the plaintiff, tliore could only bo.one verdict, viz., for tho defendant. It was clear that the jury had not misapprehended the issue. Their duty was clearly pointed out to them, and their finding was clear. Thoy said that the cartoon did not im puto to Air. Alassey what he alleged it did impute. They held it was not libellous. They found no damages (that was they, found that the plaintiff bad not made out his case).' Suppose they had found no libel and had also found damages, there was authority that the verdict would have been entered for tho defendant. Referring to tho second ground, his Honour said that if the judge had directed tho jury as suggested, ho would have been usurping tho functions of tho jury. The plaintiff relied on the opinion of several witnesses that tho cartoon was meant to represent what is alleged in the innuendo. Alany of these gave evidence to.that effect. The jury had the cartoon, and if they could not sco it was libellous, surely thev were notbound to find it libellous? To say they were bound to find a writing or pictuio libellous because witnesses said so and honestly believed so would be ignoring tho duty of a jury which had to decide, libel or no libel. In his Honour's opinion there was no misdirection.

The Verdict and tho Evidence. It was admitted that the Court could, though it had done so only in a few instances, order a new trial if it canio to the conclusion that tho writing deemed libellous was in its opinion so clearly libellous that no jury could reasonably lind. otherwise. Alter quoting authorities, his Honour asked if in this case it could be said that it was so clear and unmistakable that the cartoon imputed to Air. Massey tho circulating or the assisting in the circulating of tho p'amphle.t, and that ho was a liar, as to compel a court to say the jury could not reasonably have found their verdict? He did not think so. The cartoon, like many political cartoons, was ambiguous. It may or it may not liavo had tho particular meaning attributed to it. The fact that the plaintiff relied only on the circulating of the pamphlet, and that ho did not say it attributed any connection between tho plaintiff and the other parcels or bundles labelled in tho wagon, was surely something that the jury might consider. Why should the jury liavo come to tho conclusion that the only possible meaning was that ho had circulated tho pamphlet? Ho (the Chief Justice) was unable to answer that question, and he had heard no convincing argument on this subject from the plaintiff's counsel. His Honour proceeded to deal at considerable length with various authorities. The last point was that improper evidence was admitted, the matter complained of being the putting of certain questions to Mr. von Kaast, Mr. Fraser and tho plaintiff. Tho questions wcro as to what took place in tho House of Representatives and the Legislative Council when tho publication and issue of tho pamphlet were under discussion. The questions, said his Honour, were admitted on the ground that tho cartoon could not be understood in its relationship to the pamphlet unless tho whole facts about tho pamphlet wcro neforo the jury. These witnesses had been called to prove what tho cartoon meant, and in cross-examination they were asked certain questions, presumably to show whether their opinion was entitled to credit, considering the debato in which the plaintiff was a participant, could show that. Assuming, in tho plaintiff's favour, that the evidence was not relevant (which, however, his Honour said he must not be understood as admitting) as to such matters put in cross-examination relative to matter of opinion, it was clear from tho way the case was put to tho jury that this evidence was not relied on as affecting the interpretation of the cartoon. In fact, tho judge (Mr. Justico Chapman) specially directed the iurv to examine tho picture for themselves. The rule as to now trials ior the wronc admission of evidence was Rule '277, and it stated: "A new trial shall not be granted on the ground . . . of improper admission or rejection oi evidence, unless, in the opinion of tho Court, some substantial wrong or miscarriage, of justice has been thereby occasioned in the trial of the action. It could not be said that the admission of such evidence could, especially looking at tho suramins: tin, have affected the trial at all." "I am. therefore, of opinion." concluded his Honour, "that none of the grounds for a new trial aro valid, and that the motion must be dismissed, with £10 V}?,. costs, ami £8 Ss. for second counsel, in all £1S l?s. and any disbursements.''

Ms'. Justice Chapman's Ju&'smanf. "I agree with the judgment of Ins Honour the Chief Justice, and have very little to add to it," said Mr. Jw=tico Chapman. Continuing, liis Honour said: "It seems to mo that though several questions have hecn argued there was really only one substantial question on this motion, namely, whether the- verdict was against the weight cf evidence. It is not enough to make out that it was open to the jury to find that the cartoon was defamatory and then to point to the finding that the-figure- standing at the cart represented the plaintiff. The onus war. upon the plaintiff to prove at the trial that the cartoon was defamatory of the plaintiff cither because it was designed to defame him or because it had that effect. I assume that there was sufficient evidence to have supported a finding for the plaintiff had the jury taken n view of the caso favourable to him. The jury must, however, be coa-

sidered to have answered tliat question by rinding that the cartoon had not that effect. Tliat is manifest by what thoy intended to iiiul, and thai is wliat tiiey in effect said. Tliat now easts upon, the plaintiff the additional omir, of making out upon this motion that tlio cartoon necessarily has that effect, and that no construction of it could be adopted by a jury as reasonable men save that it is defamatory of Mr. Alassoy. It is one of those, cases to which the expression 'demonstrably wrong' fairly applies. That is to say, the plaintiff 'must show that the verdict is wrong by pointing out exactly in what way it is wrong. Various suggestions were made to the jury and to this Court on this subject, but none of these have created in my mind the impression that there was only one vav of looking at this cartoon, and that was that it defamed Mr. Alassoy in the way pointed out in Paragraph 7 of Ju's statement of claim. That being so, the verdict is conclusive. Throughout these proceedings, tbo_ defendants have disclaimed any intention to make such an imputation, and Ihc-r have succeeded in satisfying the jury not mil that they did not so intend, but tliat such an imputation has not been marie, and tliero the matter mnst end, so far as this Court is concerned."

Stay ot a Month Granted,

Air. H. D. Bell, E.G., who appeared for Air. Alassey, asked the Court if it would grant a stay for a month in order that he might have tho proper time to determine his line of action. Air. Blair: "It'is only a question of costs. The Court does not usually grant a stav for this." Their Honours saw no objection to meeting the application, and the stay was accordingly granted.