SLANDER ACTION FAILS.

New Zealand Herald, Volume LX, Issue 18355, 22 March 1923, Page 9

SLANDER ACTION FAILS.

WOMAN SEEKS DAMAGES.

PUBLICATION NOT PROVED.

GREAT NORTH ROAD INCIDENT.

An action for damages for alleged slander was heard before Mr. Justice Stringer and a jury of four in the Supreme Court . yesterday, when Violet Keat (Mr. Singer), proprietress of a confectionery shop in ? Great North Road, claimed £250 from H. R. Leaning, a bootmaker \ (Mr. Inder), alleging that defendant had uttered slanderous statements about her. ( The defence was a denial of the allegations.. Mr. Singer stated that plaintiff and defendant were both shopkeepers in the same district, and up to December 27 last defendant had frequented plaintiffs shop to obtain refreshment, and also apparently because of a certain girl whom plaintiff had as an assistant. On the evening of December 27 defendant was told not to come to the shop, and later that night he had an interview with plaintiff's husband. After that interview the husband returned to the shop with marks on his face. After the husband, a steward, left to join his ship, defendant came again to the shop, but was ordered out by plaintiff. Defendant then made certain remarks concerning the conduct of the place and plaintiff's moral character. The girl assistant was present. Later that night defendant went to a billiard saloon kept by W. ASpeers and there made an obscene remark about plaintiff, and on the following day he again made observations about plaintiff to the same man. Counsel said he did not propose /to call the girl, as she seemed to be. -■ friendly with defendant. - Mr. Inder pointed out that nothing was said in the statement of claim about allegations in regard to December 28. Mr. Singer contended that evidence in regard to Decemoer 28 was admissible, as indicating an aggravation of the offence. , . His Honor said he was not so sure of that. Ho could instruct the jury not to take notice of it. It might be alleged th» j v were words used in the heat. of alignment, and were mere abuse and not a deliberate repetition of similar words. Plaintiff gave evidence that defendant visited her shop three or four times a day, and would 6pend half an hour at a lime gossiping with her assistant. He had told her he " felt he could not work" uynless he saw the .girl. Hainftiff reminded him that he was a married man and told him he was unsettling the girl, and interfering with her work. She considered his frequent visits spoilt her business to a certain extent. On the night of December 27, after her husband had left, defendant said, "I'll have you out of here in a. fortnight," and added the. remark upon which her action was based. Later defendant offered an apology, and asked her to. shake hands. She refused to accept his apology. Cross-examined, plaintiff said the remarks made by defendant could easily be heard from the street. W. A. Speers gave evidence that on an occasion other than that referred to in the statement of claim and subsequent pleadings, defendant applied an obscene term to plaintiff, and alleged that witness was " running her." On the fol lowing day defendant accused witness of advising plaintiff what to do' in -regard to the matter, and again said witness was " running" plaintiff. : ~ V>\ ■ -''■ Cross-examined, witness said he told defendant he would see him suffer for calling plaintiff the name he : did if it cost witness his last penny. -,; /-' Mr. Inder argued that there was no case to go to the jury. The onus of proof of publication was on the plaintiff. His Honor held there was not sufficient proof of publication. The law laid down that publication was the communication of defamatory words to a person v or' persons other than the person defamed. The words must be spoken so that some third person heard and understood them. The only evidence in thfe present case was that of plaintiff, who said; the words, unquestionably slanderous, were used m the presence of the assistant, and that she was in such a position that she could have heard , ; them. I \ It; did : ; not follow, however, that the assistant did; hear them. Unless' that : assistant were called to prove that she did in fact hear them, it seemed to him that publication failed. Plaintiff must be non-suited. ,