NEW TRIAL WANTED.

Evening Post, Volume LXXXI, Issue 111, 12 May 1911, Page 7

NEW TRIAL WANTED.

W. F. MASSEY v. THE TIMES. MOTION ARGUED UiTORE FULL COURT. THAT CARTOON. The motion for a now iriel in th« libel action, William Ferguson Massoy, v. the New Zealand Times Co., Ltd.* in which plaintiff claimed £2000 damages for libel in inspect of a cartoon* tho verdict goin? for defendant, company, camo up for rehearing before the Full Court to-day. Tho Bench was occupied by the Chief Justico (Sir Robert Stout) and Mr. Justice Chapman. Mr. H. D. Bell, X.0.. with him Messrs. A. Gray and G. H. Fell, appeared in support of the motion, and Mr. S. Solomon, X.0., with him Mr. A. W. Blair, in opposition. THE MOTION. Tho grounds of th© motion to set aside the verdict were as follows :—: — (1) That the special verdict or finding of the jury is so defective that judgment cannot bo given upon it. (2) That the learned Judge misdirecbcd tho jury in the following matter* : (a) By directing them that they might disregai-1 the evidence of the witnesses as to the- interpretation of such witnesses of the cartoon atid works which formed the alleged libel : (b) by directIng them that even if they found that tho plaintiff was represented by the figure hitching the wagon, they might find that the cartoon and words ware a mere political skit, and therefor© did not attribute personal misconduct to the plaintiff ; (c) by directing them that their special finding was a verdict for the defendant company and that they, upon such special finding, should give their verdict for the defendant company. (3) That the verdict was against the weight of evidence. (4) That the finding of the jury is not' a verdict for the 'defendant company. % (5) That the learned Judge admitted improper evidence, .to which tho plaintiff objected distinctly at the trial, namely, evidence of the memory of witnesses of reports of what was eaid by members of Parliament in a debate in the House of Representatives on the 30th day of November, 1910, and in a debate in tho Legislative Council on the Ist day of December, 1910. ' THE JURY'S VERDICT. The jury gave the following verdict: (1) We are of opinion that the figure represents Mr. Massey. (2) We ai\> of opinion that this is a political cartoon, and is not libellous. When the verdict was stated, My. Justice Chapman said: "That is a verdict for defendants, and I will direct accordingly," MR, BELL OPENS. Mr. Bell commenced by outlining the I alleged libels contained in the pamphlet. It did not, he said, seem to be much ,111 question that what tho figure wrb doing wsa something in connection with j the hitching of tho apparatus to the donkey, marked Ananias. The cartoon bore tho statements: '"Hitch your wagon to a star '—Emerson " j and "'Hitch your wagon to a. lie '—Dr. Fmdlay'e amendment." The caitoon appeared on 3rd December, tho writ wae issued the Bamo da.y, and on 23rd December a second cartoon was published, apparently for the purpose ot showing that Mr. Maesoy was not i^epre&onted. Counsel drew attention to tho words "Pamphlets fieo" on the first cartoon. Defendant* had Btated that their leading article hfid made it clear that no reflection' on plaintiff was intended. His reply was that the leading article ap« peaied two dayr. before the cartoon. Therefor© it was not any mitigation. Mr. Solomon: The article of lab December was used by plaintiff to accentuatehie caiso. It was they who uaed the article. Mr. Bell: I do not agree with that. His Honour: Was it not put in in evidence? Mr. Bell: Not by us. We put ia nothing but the cartoons. Mr. Solomon: The argument used before the jury by plaintiff was that that article had been written on Ist December. After that the law of libel was altered, and then defendant's newspaper altered its tuno. Mr. Bell: How could 1 liavo £a,id that? I never said any tiling co ridiculous. Dr. Findlay'e "epoch-making" speech waft between' the Ist and the 3rd. The speech had nothing to do with tho debate in tho Houeo of Ropre* sentativee. SUMMING-UP IMPUGNED. Mr. Bell : With great respect I take exception to his Honour's summing up. The points were contained in tho thre^ papers. The Chief Justice: It is not usual to rely on the newspaper reports. ' They, take bits they consider palatable to the public. They don't give what they regard as the dreary talk of a Judge. Mr. Justice Chapman : I told the jury, that they were tho interpreters of the. question of libel. I said they might supersede their own opinions to those of tho witnesses. Mi 1 . Bell : Hk Honour did not tell the jury, as I respectfully submit he tthould have told them, that if they found that the figure represented Mr. Massey, and they found that the figure was hitching that wagon to that car, they should find a. verdict for the. plaintiff. The Chief Justice: That is non-direc-tion. Mr. Bell : It is misdirection, because that should have been the tiiecction. The Chief Justice; It is not a case ci; misdirection. Mr, Bell : Our case is that in this matter, his Honour, by the way of putting it to tho jury, left it to thorn practically, as his Honour's opinion that it was a, reasonable interpretation of the thing that it contained no imputation, against Ma*. Massey. Proceeding, Mr. 801 l said:— "l submit that his Honour's words were not sufficiently guarded. I say that he did not sutfiomntly warn the jury that if it was a libel in fact, a politician waa in exactly the same position as any other person, and did not call the attention of the jury to the fw,ct that it was common § round that this would be a me&n and eßpicable i act whether it concerned » politician or not." Mr. Justice Chapman : I think it iD made clear by tho report* that I did' put that to the jury. Mr. Bell: Whether ,i fanner ct anyone else? His Honour: Mr. Mousey. (The »• port referred to & farmer or carrier). Mr. Bell: I submit thnt Ids Honour oid not sufficiently emphasise tho fact, aud tho jury may have been milled by supposing it to be a political Bkit. A JUDGE'S VIEW OF HANSARD. Coming to tho contention that tho learned Judge admitted improper evidence, namely, the evidence 'of tho memory of witnesses of report? of what wa« said iv the Howe of Ropmontativos, Mr. Doll wud he hud aama that Hansard should ha put in. Mr, Justice Chapman : Obvioiialy tt> should not litt>'«> boon. You lutvi* been a number of Parliament youvwlf, and you have wn snc'ccUet ,>nu did not recosj;nu>t> ;tfs exactly fcoircipondhig with _vhal had bocu said.

Counsel '-quoted "many authorities in aupporT bT'lmarguinente.' He-eaid that the," jury's, verdict was not a verdict for defendant as directed - by the Jud^e. ihe two answers were inconsistent, and Ino judgment should have been- given. The Chief Justice : You must contend that" it was* a verdict for the plaintiff or no "Verdict at all. Which do you contend? Sir. -Bell : That it was no verdict at all. ' Mr. Justice -Chapman : I took it upon nivsel'f to say that it was a verdict for defendant. I asked if you objected to th.-tf, and you did. The Chief Justice • The jury found no libel on anybody. Mr. Be"}l >.. That*, what ,1 challenge. ■ At 1 jp.OT.j~ tli* court 1 ad journetl until On resumin.g/'Mv. "Grjiyr^cond/cotin-. .(«! for plaintiff, addressed the court on 'case law on the points made" by MrBefl, as to whether there was a libel or not.THE DEFENCE. At 2.40 p.m. Mr. Solomon rose to reply. "The questions for the court, jl take it," he said, "are : What its the 1 meaning and effect of the verdict ?_ aud, 1 secondly, aasuming that the verdict is iforlihe defendant company, is it liable' Ito p J e set aside on a new trial granted on. the-'ground of misdirection or wrongful admission of evidence? It ia the duty ni .this court to take the findings of the .jury in conjunction with the whole' case and" the summing up of the learned Judge at the trial."- - '* Counsel quoted an authority which .declared that new trials" on grounds of iform constituted' a, scandal 'to procedus'el I Could any reasonable- -man ■ como to any jothei' 1 conclusion, taking the direction and-finding into consideration, than that the .jury -intended to find a verdict- for ,'tho^'deiendant company, as his Honour 'directed? No exception whatever was Itaken on that aspect of the quesiion Ito the undoubtedly sound ruling of his j Honour, ft was very rarely that a jury 'followed the surniain^-up 'of the Judge !;is intelligently ns this jury did. The I jury accepted the spnumng-up, and stated in as plain F.nglish as coold bt expected of a jury that, for the rsaeens i^ruen, lbs verdict wr.s far the defendant CL-nipnny. (Prv*ee*diiig.)