SLANDER ALLEGED

Evening Post, Volume XCII, Issue 40, 16 August 1916, Page 8

SLANDER ALLEGED

WELLINGTON PATRIOTIC

SOCIETY

DISPOSITION OF THE FUNDS

PURCHASE OF BAND INSTRU-

MENTS.

'A case of considerable interest was called on in the Supreme Court this morning before his Honour Mr.' Justice Edwards. It was one in which the disposition of the funds of the Wellington Patriotic Society was raised. Joseph Lewis, honorary secretary of the society, claimed £501 damages for alleged slander against Stanley H. Homer, manager in for the firm of Charles Begg and Co., Ltd. Mr. J. J. M'Grath appeared for the plaintiff and Mr. A. W. Blair, with him Mr. E. C. Levvey, for the defendant. The following jury was empanelled: Messrs. F. Sitacey (foreman), F. J. Caterer, A. T. Baker, P. E. Church, W. Tyrill, G. H. Thornton, F. Beattie, J. A. Richardson, J. A. Hannah, E. Bowman, 'P., A. Coventry, and W. E. Humes. THE CLAIM. In the statement of claim it was set out that the plaintiff is a member of the executive of the. Wellington Patriotic Society, and at the time of the uttering of. the alleged slander was employed as its honorary secretary. The society was formed iv .Wellington on 29th October, 1914, for the purpose, of . raising funds, for the assistance of wounded soldiers and their dependents, and had succeeded in raising the sum of £90,000. On 29th June last the defendant, in Lambton<juay, falsely and maliciously said to one George Hopkins the following words :— *' There is some dirty work being «»rried on by the committee of the Patriotic Society, and your name is not too clean in it:" These words, it was claimed, were intended by the plaintiff, and understood by the said George Hopkins, to mean that the Executive Committee of the iWellington Patriotic Society and the plaintiff had been guilty of a breach of trust in making an improper use of the funds raised by them, and that the plaintiff was guilty of fraudulent and dishonest conduct in the discharge of his office, and not fit to be trusted or employed as honorary secretary to the society.

The plaintiff, in consequence, claimed to been disparaged in- his_ office, which is one of public trust, and to have been much injured in his credit and reputation and. in"bis"business as.a. contractor. .•«•■■* • ■-• .. STATEMENT OF DEFENCE; The statement of defence was under several heads, and consisted, first of all, in a denial that the words complained of were spoken or published to George Hopkins or any other person. As a further defence, it was set out that the words mentioned were not spoken or published with the meaning alleged by the plaintiff, and that the words are not capable of any actionable or defamatory meaning without proof of special damage, and that none is alleged. By way of still further defence, it was set out that the defendant, through his solicitors, offered an apology to the plaintiff for the defamation complained of: Also, if the said words were published (which the defendant denies) such publication was made' bona fide and without malice, upon a privileged occasion, the details of!which" were set out in terms,"the main-features' of which were as follow: The defendant is manager in Wellington for Chas. Begg 1 and Co., which firm has subscribed largely to the funds- of the Patriotic Society of which the plaintiff is secretary. The society was desirous of purchasing a- set of band instruments for patriotic purposes, and the defendant and two other band instrument importers sought from the plaintiff, as secretary to the society, an' opportunity of tendering for the supply of the instruments. The society, without calling tenders, purchased the band instruments through the Bristol Piano Company. The defendant, as manager of a company which had been a large subscriber to the patriotic fund, was interested in the disposition of the fund. Defendant met the plaintiff on Lambton-quay on 28th June last, and spoke to him about the unbusinesslike methods of the society in ignoring ' the offers from other firms to tender for this supply of the band instruments, and giving the order, without competition, to the only firm in New Zealand which had as large shareholders persons of German birth. Defendant further informed the plaintiff that such action would not enhance his reputation as a business man. AMENDMENT SOUGHT. Prior to counsel's opening address, Mr. Blair asked leave to amend the statement of defence by striking out the words "and giving the order without competition to the only firm in New Zealand which had, as large shareholders, persons of German birth." In reply to his Honour, Mr. M'Grath contended that the application came rather late. . His Honour expressed .the opinion that the suggested amendment was not, after all,, very material. Mr. Blair explained that the words had been put in the statement of defence by error, and put in as purporting to be portion of a statement made by the defendant to the plaintiff. The reason why the amendment was sought was that tho defendant was anxious that it should not be made public that he had made use of such words in reference to another, and rival firm. The defendant, Mr. Blair explained, did not make uso of the words in the conversation with the plaintiff, .although the defence was prepared to establish the fact contained in the words. THE EVIDENCE. : - Joseph Lewis, the plaintiff, In reply to Mi-. M'Grath, said he was the founder of the Wellington Patriotic Society, and had held the position of hon. secretary from its inception until the present. The society consisted of a number of well-known Wellington professional and business men. The original object of the society was to relieve the sufferings of the Belgians, and this was subsequently extended to its present'scope. He (witness) received no remuneration for his services. The society was only a collecting, not an administering, body. It had been fotuid. necessary by the Patriotic Society from time to time to have the services of a band, and it was ultimately decided to take over Jupp's Band. All the details and arrangements in connection with the taking over of the band were not yet complete. The society had not purchased any ' set of band instruments, but liad accepted the offer of the Bristol Piano Company to supply a Eet, provided'that the .society could raise sufficient funds lor that purpose specifically. On 28th June he (witness) met defendant on Lambton-quay. He did not know who the defendant was at.thattime. Defendant, said : "What about those band instruments, Mr. Lewis?" and he replied, "I1 think that matter is settled for the present at any rate." Defendant replied: "Oh yes, there Vis some dirty. work going on in that Patrio|ic; Spcietjj

Committee, and your name is not too clean in it." Plaintiff then said if the defendant was not satisfied with the working of the committee a. deputation would be welcomed by the society. Defendant appeared to be angry and repeated his accusation about the "dirty work." He (plaintiff) asked defendant to withdraw the statement or to repeat it in 'the presence of a witness, George Hopkins, wlio was standing nearby, and who was called up by the plaintiff. Defendant repeated the words complained of and asked Hopkins to repeat them. Hopkins did so, and defendant said: "Yes; you've got it, and that's public opinion." He (witness) then told the defendant that he would be made to prove his words. Defendant did say that his firm should have had an opportunity of tendering for the supply of the instruments. As far as he (witness) was concerned he had not been guilty of any "dirty work" in connection with the society. There could be no doubt inhis mind as to the words used by the defendant.

To Mr. Blair: Offers of instruments had been received from other firms, but prices were not sought from any other firm in Wellington, except the Bristol Piano Company. He believed that the company had a placard in the window with the instruments stating that they had been purchased by the Patriotic Society. The idea of getting a Govemm,ent rebate of -the duty on the instru m'ents was so as to have so much less money to collect. He had not endeavoured to find out if anyone else but Hopkins had heard the remarks said to have been made by the defendant. He told the defendant that the society had not called for tenders for the instruments. At the time defendant made his accusation, he evidently jumped to a conclusion as to where the order was going, although he was not told. Witness said very little on account of the heated frame of mind in which the defendant was.' When ' defendant. said that the action taken would not enhance witness's reputation as a business man, he did not say to the defendant: "My reputation stands higher than yours, Mr. Homer." He did say that his reputation would bear investigation anywhere. WHY NO TENDERS? lie-examined by Mr. M'Grath, witness said that the reason Begg and Co. and another firm in Wellington were not asked to tender for the supply of instruments was that Mr. Jupp, the bandmaster, was deputed by theisociety to make enquiries if any of the firms had a set of instruments available for immediate delivery. Mr. J-npp reported that Begg's had none, that Copithorne's had a brass set, but that the society band would require silver-plated instruments. Mr. Blair: Had Jupp's Band a complete set of instruments? Witness: They had sufficient for the number of members, but they were not in very good condition.

Mr. M'Grath : Please explain how tht> afrahgement'canie to" bo made with the B ris to] L Piano Company. ■■■; Witness replied'that the arrangement was arrived at on the recommendation of an. expert who inspected the only two sets of instilments immediately available in New Zealand. "EVERYTHING STRAIGHTFORWARD." James M'lntosh, until lately honorary treasurer of the society, gave evidence in reply to Mr. M'Grath to the effect that, although there had been, one or two matters mentioned outside, to the beet of his knowledge, the plaintiff had carried out his duties in connection with the society in-a perfectly straightforward manner. Plaintiff had not been guilty of any dirty or improper conduct- His (witness's) 'interpretation of the words complained of was that they were intended to convey the meaning that the plaintiff had received a ■ commission for • placing the order with the Bristol Piano Company. „■.... To Mr.'.'Blair: He-had been particularly interested in the case as a member of the executive. He reserved the right to take separate action against the defendant if lie thought it advisable. Mr. Blair: Do you suggest that Lewis or anyone else has suffered a farthing's worth of damage? ; Witness: Yes, I do. His Honour: What damage? Witness: Only personal credit, perhaps, sir. WHY'ACTION WAS TAKEN. • ' In further reply to Mr. Blair witness said that an article had appeared in the Evening Post referring to the fact of the society having been slow in accounting for the funds expended. He did not think that it was as a result of this that the Legislature had insisted on the distribution of the funds by the War Relief Association. There was considerable talk about town about the society, and the action was brought to protect members of the executive. .Mr..Blair: Then you intend to make an example of Homer 1 Witness.: Yes. Mr. Blair: Yes; make an example of him. I see. Edwin John Collie, accountant, treasurer of the society, and previously as-sistant-general secretary for twelve months, said that plaintiff had never, to his knowledge, been guilty of anything shady or dirty. He carried out his duties in an admirable manner. Witness added ' that, in his opinion, the words said to have been used to plaintiff by defendant in the Lambton-quay interview implied ; dishonesty, bribery and corruption; and that plaintiff was not a man to be trusted either publicly or privately. "A BIT UPSET." George John Hopkins, a cleaner, employed by the plaintiff, corroborated in detail the evidence given by the plaintiif in regard to the conversation between plaintiff and defendant on Lamb-ton-quay, and the accusation made by the latter. When defendant nsked witness to repeat the words made use of plaintiff said, "Don't tell him, George,"' but subsequently said, "Yes, go on, tell him."

Mr. M'Grath : In what state or condition was Mr. Homer?

Witness: Ho seemed a bit upset and wild over it.

Re-examined by Mr. M'Grath this afternoon, the witness Hopkins said that he understood from the statement made by defendant that lie meant that the plaintiff was .not acting fairly by the Patriotic Society,, and was receiving something he should not.

To Mr. Blair: He did not believe the words when he heard them, and his opinion of plaintiff as an employer and as a man was not affected by the words. When he was called up by plaintiff during the Lambton-quay episode, it was defendant who repeated the accusation made, and not the plaintiff. He did not know even now what plaintiff and defendant had been talking about before Jie was called up to hear the accusation made. Mr. Blair : Then how did you come to think that it meant that plaintiff was receiving something he should not? Witness : That is just what came into my mind. This concluded the evidence for the plaintiff. CASE FOR THE DEFENCE. Mr. Blair contended that the plaintiff should be nonsuited on the grounds that the words complained of were not defamatory without innuendo, and even with innuendo were not capable of the meaning alleged. . His. Honour ruled . against counsel's .contention. ' , '.'.. ..V ;;■ Mr. Blair, in his opening address., said that the ease was an: exceedingly trivial PBe». _B*g_L>l>"bol§ flue6t|on._aj!gwijgd._Js, l

be: "Did Homer make use, in the presence of Hopkins, of the words alleged?" Proceeding, counsel said that the evidence to be called for the defence would be short. He outlined the evidence on the lines of the statement of defence' as quoted above. The importation of Hopkins into;the case was, he claimed, most extraordinary. First of all the plain iff had claimed £1000, and now sought to obtain £501. . What for ? Simply because, as they alleged, Hopkins, a servant of the plaintiff, had overheard'sOmc words made use of by" thy defendant.. Thus the-plaintiff sought to penalise the defendant for daring to criticise the business methods of the Patriotic' Society. It had not been shown, counsel contended, that plaintiff had suffered the slightest damage. The only person who heard the words —at plaintiff's request—was Hopkins, and lie said he did not believe them. Continuing, counsel contended that when, defendant became aware that plaintiff was aggrieved over some words said to have been used, he offered to apologise and pay any reasonable costs incurred by the plaintiff. The plaintiff, however, insisted on certain conditions, including the payment of £50, to go to some patriotic society, and the payment of the cost of publication in the Wellington papers of a written document. To the plaintiff's conditions the defendant could not agree, as an attempt was being made to penalise him because of the criticism of the Patriotic Society by a section of the people of Wellington. DEFENDANT IN THE BOX. Stanley Easier Homer, the defendant, said in regard to the statement made by plaintiff that he did not know defendant, that he had at least three distinct business dealings with the plaintiff, whom he knew quite well, and whom he always recognised in the street. Witness went on to refer to the early negotiations, by letter, between his firm and the Patriotic Society regarding the purchase of band instruments. When he met plaintiff in Lambton-quay he mentioned the matter of the instruments. Plaintiff- said the society bad decided on the purchase of instruments, and he (defendant) said that that was surely an unbusinesslike way of doing things, and added that plaintiff's business reputation had not been improved by his work with the Patriotic Society. Plaintiff, who "flew up," said: "I'll have you up over this," and called Hopkins up. In response to a request to repeat his statement, witness declined. Plaintiff then said: "This is what you said," and made a statement similar to that complained of in the statement of claim. He (defendant) said: "Lewis, you are saying things I never said. You are endeavouring to put words in my mouth to cause trouble."' Plaintiff reph'ed: "That is what you said. I will have you up for £1000 for it." Continuing, witness totally denied having made use of the words "dirty work," and said lie had absolutely nothing against the Patriotic Society. The words were mentioned by the plaintiff, and the matter was purely a persona] one; nothing to do . with the Patriotic Society. The price of a set of silver-plated instruments, as sold by his firm recently, free of duty, was about £620. Plaintiff had never suggested to him that the band instruments were not being purchased out of the patriotic funds.. When asked by the plaintiff, through his solicitor, to apologise, publicly, for something he had never said, he did not feel inclined to do it. In -addition to the apology he (defendant) was asked to pay in all £65 by way of settlement. (Proceeding.)