APPEAL UPHELD.

King Country Chronicle, Volume XIX, Issue 2051, 4 December 1924, Page 5

APPEAL UPHELD.

TEJ KUITI SOANDAL CASE. ENGLAND* v. CROWLEY.; . (Sjiecial to Ohroncle.) Hamilton, Tuesday. An appeal from the judgment ot : Mr F. W. Phvtts,*S.M, ill To Kuifci, was hoard before His Honor, Mt Justice Herdman, at the Supreme Coin,, .Ham-ilton.-on Tuesday, in the case in which I'Aioy Alice JEngland obtained £2O damages froim William Crowley for al- ; leged slander. Mr Noble' appeared for appellant Crowley, and Mr Mackersey for respondent, Mrs !England. It appears that while the Englands lived. a,t Rotorua, the husband's duties' as an engine-driver necessitated him spending one night .at Erankton, during which time respondent was left alone i'n her house. On August 21st, 1924, appellant, ire was alleged, held a conversation with her husband, in which the following words were spoken:— Crowley: You remember when you were staying in Erankton one night a week ? England: Yes. Crowley: Drivers told me that drivers were taking liquor s-o your house. In the lower douift it was held that appellant Ijy these words meant and. intended that plaintiff was unchaste and of immoral character. IJy reason of this the woman, it was claimed, suflferod much grief and anguish and liact been injured in her character and reputation, brought into disgrace amongst her neighbours and friends, aaid had been deprived etf then 1 hospitality. in the lower Court Mrs England said that Crowley was her husband's boss. One day over the fence in Te Kuiti he spoke to her of the "Rotorua affair," and said if she was nost careful he would "piR her through over it." She asked him what he meant, and he said he might tell her later on. Crowley had once accused her oi being drunk, which was quite untrue. She had only had wine ordered by the doctor. Plaintiff's husband said Crowley several times spoke to him and referred to the "Rotorua situnt." Witness asked him for an explanation and he replied, "You don't know; I won't tell you." On August SIX witness aske'd' Crowley if it was a. fact that he had accused witness's wife in the presence of another man named Martin, of being drunk. Crowley replied, "Yes, and I have witnesses to support it." England asked who they were, and CrowJoy replied, "Mr Kennedy, the constable. I refer to the. Rotorua affair." Crowley later said he had perused the delivery book at the station when he knew Mrs England had been drunk, to see how much liquor had' gone to their place. When at the stn/iion he met Constable Kennedy acid said to him, "That woman is drunk." Constable Kennedy replied, "Oh, she is at her Rotorua business again." England saw the constable later, who denied having said anything of the kind to Crowley. Witness later saw Kennedy in the presence of Crowley and a man named Martin. When Kennedy denied having made the statement, Crowley said "it must have been someone else." Crowley then made the statement which was the subject of the slander actioliv. Martin asked Crowley for the names of the driviers who had., told him of the Rotorua a flair. Crowley declined to give the names, whereupon Marjtiu said, "Well, withdraw or apologise." He replied, "Nil/, it's for this man to act. When he forces me I'll tell." Witness said his wife had .'suffered considerably as the result of Crowley's attacks. His statements had gained considerable -publicity and a mail from railway headquarters had enquired i' he (England) was being victimised by Crowley. A IV KniAi fireman named Christ' pher Hoole, in his lower Court evidence, said that Crowley remarked to him one day, "J see Mrs England is drunk again oyer in her garden." Witness said he did not think so. Crowley replied, "It's right," and added. "whajt do you think of that little dark girl of England's?" Witness said, "What do you mean?" He said, "Do j you think England is the father of the ' child?" Witness replied, "Yes, who else?" Crowley grinned and said, "I don't think so." Crowley had often referred to the "Rotorua s't-unt," anu said drivers had taken liquor to Crowley's house while ho was away. Witness always gathered from these attacks that it was meant that Mrs England was immoral. The Magistrate, in giving judgment for plaintiff for C2U and costs; said it was the lusunl experience that a manned woman given to drinking with oilier men in her husband's absence was immoral as well as drunken. Defendant had repeatedly made this charge. Moreover, he maliciously attacked Airs England's character when he said Mrs England was drunk again and that England was nut the father of the child. Defendant had gone out of his way to make these attacks and had admitted in court that there was not a word of truth in what he had said about her. The fact that he had ' withdrawn all his statements and had apologised in court would clear Mrs England's charadter and would affect the rjaestion of damages. I The grounds of the appeal were that the words complained of could not be understood to mean that plaintiff was : unchaste and immoral and that they were not actionable per se; also that there was nu evidence of any damage having been suffered by plaintiff by the use of the words by defendant. Mr Noble said the reason Crowley told Kennedy the woman "was drunk was that she had taken a shovelful of soot from her stove and had strewn it over the fence on to Crowley's washing hanging on the line. Mr Mackersey protested that this evidence was not given in the lower Court. His Honor: Well, you will wash your dirty linen in court. Mr Noble said that the general principle laid down by the learned magistrate that because a woman drank with other men she was immoral, was extraordinary. Such dictum might be expected from a super-censorious person or rank prohibitionist who attri- '' bitted, all crimes of the calendar to j drink, but it was startling coming from a. magistrate His Honor asked Mr Mackersey how; it. could possibly be inferred that the piiblished words complained of implied immorality. Mr Mackersey said that if the statement about the Rotorua affair was an > isolated one only, it would not have

j meant much, but Crowley frequently referred to it and held it as a threat over'Mrs England's hjead. Mr Noble said the appeal was on a ppinfc of law and fact. The Magistrate had held that the words supported the meaning given them by respondent, and it was from this decision that the appeal was made. Counsel traversed the evidence given at the hearing in the lower Court and argued that there was no evidence whatever to show that the words meant the woman was unchaste and immoral. The plain meaning was that the woman, in the opinion of the appellant, had been drinking ait Rotorua, and there was ho suggestion of adultery in the whole case. Counsel pointed out that it was the imp'ression in the minds of the people present, when the Avoids were spoken that the Count was alone concerned with. The only persons present were Martin, Kennedy, England and Crowley himself. Neither Martin nor Kennedy were called as witnesses for respondent. No evidence was given to show- that the words would mean to persons present that here was any question of immorality in the spoken words. Counsel observed that in cases where words were capable of moiia than one meaning, the real defauier was the person who! selected the sinister meaning from a number of innocent meanings. Tins inference to be drawn from the evidence by the learned magistrate was not a legitimate one and was not justified by the evidence before bun. The Supreme Court was/ he contended, entitled to draw its own inference where the facts were 'not in dispute and to eofrrect a wrong inference drawn by the lower Court. Mr Mackersey contended that the words \\-ere capable of one meaning only. Crowley, after telling plaintiff she was drunk, referred to this "Rotorua affair," which implied something additional to drunkenness. If he had meant drunkenness iinjly, he would surely have mentioned it at that time, bviit lie gave her to understand that it was something graver than that, and the woman was considerably disturbed in her mind as a result. By innuendo he inferred to other people I hat the woman was immoral. To tho person of ordinary intelligence, how would such a statement appeal? To say that while a woman's husband was absent at night other men visited her and took liquor to the house wojuld imply that the woman Was living an v immoral life. That, he contended, ' was how the statement would appeal to the average person.. Constable Kennedy had said that that was what he understood by it, and so had tho other witnesses. This statement was not alone, but there was the additional one that Crowley had made to Hoole, that the dark child, which, as a. matter of fact was born at Rotorua, was not England's. Right throughout tho defendant had.acted with malice and the impression which his insinuations left upon the minds of those who heard them was that Mrs England was unchaste. His Honor said there might be a lot of malice in the affair, but he had to interpret the meaning of tho words uttered. There was no action for defamation on the grounds that Crowley had insinuated 'that England was not the father of one of the children. Mr Mackersey said that Crowley in the lower Court would not go into the box and had withdrawn his statements and had apologised as a means to reducing the damages. His Honor said there was no doubt Crowley acted ii.i a miserable sort of way towards the woman, but there was no evidence to show that there was a suggestion of immorality. His Hono'r thought the appeal should be * allowed as he felt it was difficult to come to the conclusion thaifc a. reasonable interpretation of the words was that plaintiff was guilty of immorality. One knew of Instances of women who drank to excess who were not immoral. The appeal was allowed with -costs £7 7s.