THE COURTS.

New Zealand Mail, Issue 1156, 27 April 1894, Page 31

THE COURTS.

LIBEL CASE. , * Mr Justice Richmond and a special jury woro engaged on tho 19th April in hearing an action for libel brought by Frederick Goorgo Thompson, insurance agent, Wellington, against McCarron, Bird and Co., Melbourno, publishers and proprietors of The Australasian Insurance and Banking Record. Damages woro laid at .£IOOO. Mr SkeiTott appeared for tho plaintiff, and Mr Gully for the defendants. Tho following gentlemen were empanelled as a special jury:—Messrs Chas. J. Hill, J. B. Winton, J. Boauchamp, George Bolton, S. Lancaster, John Robert Hannah, James Lockie, John Kirkcaldie, Richard Brown, John Prouso and Nicholas Reid. Mr Kirkcaldio was chosen foreman.

Tho statement of claim set out that for some time previous and up to March, 1891, plaintiff was employed by Geo. S. Graham (attorney and agent of Phoenix Assurance Company of London) as Wellington agent, and that defendants on the 18th April, 1892, published in their paper, The Australasian Insurance and Banking Record (which circulated in Now Zealand), the following paragraph (taken from the Evening Post of 16th November, 1891) and headed "A Defaulting Firo Insurance Agent":— " Considerable excitement was occasioned in town to-day when it was discovered that Mr F. G. Thompson, the well-known commission agent, was missing from his accustomed haunts, and that, accompanied by his wife and family, he had left for the South by the Eotorua yesterday, having previously disposed of all his household effects, although nono of his friends knew of his intended departure It was further rumoured that passages had been booked by the Tongariro from Lyttolton for London. The names of Mr and Mrs Thompson and family (3) appear in tho list of passengers telegraphed as having sailed by the Tongariro to-day." This plaintiff took to mean he was a defaulter, and had left the Colony for that reason. It imputed gross dishonesty and misconduct to him. In the same issue of their paper defendants published in their paper under the same heading an account (also taken from tho Post) of plaintiff's action in the Supremo Court to recovor £174 from Goo. S. Graham for services rendered as Wellington subagent of the Phcenix Assurance Company. This article inter alia stated —(1) " It was shown that last year Thompson's accounts wero found to be at fault, and his appointment was cancelled" ; (2) " his accounts were gone into, and it was found that something like £3OO was clue from him to the Company"; (3) that on Graham pressing for this and other money Thompson instituted his suit " on a pretended claim for services rendered in * conducting London correspondence for four years' and similar items, and that Graham counter claimed £59, which he had had to pay the Company in making good money which Thompson had received and not paid over (though, as ho was only paid by commission, ho could not be made criminally responsible)"; (4) after mentioning tho judgment upon counter claim for £7B 0s 8d "It came out in tho evidence, however, that this did not nea'.ly represent Thompson's deficiencies, various sums having been discovered since the commencement of the action." These statements wero alleged to impute fraud to the plaintiff, and gross misconduct and dishonesty in the course of his employment as agent of tho Phcenix Assurance Company. As to tho second article, it was alleged not to be a fair, honest or impartial report. Tho plaintiff complained he had thereby sustained great injury and damage to his character and reputation, and had otherwise sustained damage and injury. Ho therefore claimed £IOOO as damages.

Tho statement of defence admitted the publication of the articles, and claimed that the publication was without malice, and in the belief that it was for tho public benefit; furthermore, that the first article was published in the belief that tho statements made were true and correct, while it was claimed for tho second article that it was a fair and correct report of a trial in a Court of Justice. In an amended statement it was alleged tliat tho heading " A Defaulting Fire Insurance Agent " applied to both articles and had not special reference to tho first of them as averred in the amended statement of claim.

Mr Skerrett having opened his case, called the plaintiff, who deposed that from 1868 to 1879, he was connected with firo insurance offices in England. In September, 1887, he received tho agency in Wellington of the Phcenix Fire Insurance Office, During the time ho held the position, he furnished monthly accounts to the goneral agent of the business done. Those accounts contained a list of outstanding premiums. After the termination of his appointment Mr A. Boardman, jun,, succeeded him. Mr Kember found on examining the accounts that there was outstanding a sum of £333. Mr Boardman said if the plaintiff collected the accounts he would allow him 5 per cent. Ho rendered an account of the matter, showing what sum ho had collected. He commonced m action against Mr

Graham to recover £IGO, and £l2 0s Od commission. In defonco Mr Graham made a counter claim for £59 and . £lB 53 Gd. There woro throe agreements to refer tho matters in dispute to arbitration, but nothing cane of them. Plaintiff eventually withdrew the first action by arrangement with Mr Graham. He then commenced a second •action against Graham, a counter claim being made by the latter for all outstanding premiums, and for some other amounts. Witnesfc, with his w r ifo and family, left for England on 28th November, 1891, tho action then being undetermined. In England he entered into nogotations with tho Equitable Insurance Company. Manchester, for an agency in New Zealand, but did not obtain it. His attention wa3 called to tho article in the Insurance Record shortly after returning to tho Colony. On tho 24th March, 1893, ho wrote to defendants, and in August his lawyers wroto to them. When he left Now Zealand ho owed about £l5O to sundry persons, and had arranged for the payment of certain sums. The person who was to have paid these moneys, however did not do so

By Mr Gully: He left rather hurriedly for England. Ho did not make up his mind to go until within the week that ho left. He did not inform any of his Wellington creditors prior to leaving; ho did not think it necessary. With the exception of an account to tho D.I.C. he did not think he incurred any liabilities just beforo leaving. He sold off his furniture in Wellington and took away with him his wife and threo children, not taking return passages, One reason for not doing so was that ho had not the means. Another reason was that ho went Home third class, and it was not likely he would return the same way. It was untruo that he told a fellowpassenger to Lyttelton, where he embarked for Homo, that he wa3 going on to Dunedin

Mr Gully cross-examined the witnoss as to tho specific statement in the paragraph to which ho objected. He could not say his departure did not occasion " considerable excitement," but tho paragraph was an improper one. As to "accustomed haunts," ho had not had "accustomed haunts." One's office could not bo said to bo an accustomed haunt. The other statements were corroct, except that the date assigned for his departure (16th) was wrong, it should bo tho 28th. Ho left Mr W. R. Waters about £OO in cash, giving him specific instructions to pay tho D.I.C. £2O. The balance of £lO was to be distributed among his creditors (of whom a list was loft), and they wero to be told tho rest of their claims would bo paid when ho returned. His liabilities amounted to £l5O. As to tho paragraph mentioned above, it was of a very damaging character to him. Still li3 could not point to any statement that was specifically false. Mr Skerrett interjectod that tho sting of tho paragraph lay in tho heading " A Defaulting Fire Insurance Agent." Cross-examination continued : When he left tho Colony ho owed tho Phoenix Company £59 for premiums received. He traced his inability to got a position in the office of the Equitable Company at Manchester to the paragraphs published by tho defendants. The reason why ho elected to sue tho Insurance and Bankin g Recoi d instead of tho Evening Post was because the publication of tho paragraph in tho former was more likely to immediately affect him than that published in tho local paper. He coufd not afford to pursue two libel actions at one time. He had not demanded a retraction from the Post, although he had seen the editor at the instance of the proprietor ; ho left that matter to his solicitor. When he left Wellington ho intended returning in a few months. He passed through Wellington on his way to Hawko's Bay when ho came back and asked Mr Waters if he had fixed his affairs up, questioning him particularly about one item. To Mr Skerrett: When he saw Mr Gillon, editor of tho Post, Mr John Blundell was present. Ho complained of tho paragraphs that had appeared about him, and Mr Gillon said "Why don't you go for Graham, the manager of tho Phcenix Company ?" Witness thanked him for tolling him who the author was, and Mr Gillon then said—" Oh, no, it was copied from tho Judge's notes." Nothing more transpired. Ho had not asked any person to rofrain from giving evidence in tho case. Mary Anno Thompson, wife of tho plaintiff, deposed that before her departure for England in November, 1891, she was present at an interview between her husband and Mr Waters. Ho paid the latter a sum of money, and witness asked what tho amount was. Mr Waters replied that there was enough to pay ten shillings in the pound on what they owed. The witness was asked a number of questions, which, however, wero ruled as irrelevant by his Honor, and the witness stood down.

George Paradise, salesman for Messrs Lyon and Blair, gave formal ovidenco in regard to the ch dilation in Wellington of the Insurance and Banking Record. It was taken almost exclusively by insurance men and bankers.

Charles William Benbow, manager of the South British Company, in his evidence stated that somo time ago he was askod to arbitrate in a matter of accounts between Mr Thompson and Mr Graham. Ultimately ho was told his services would not be required. Tho article in the Record had been read by him. He thought that it roferred to the appropriation of moneys. His Honor remarked that there could be no doubt as to what the paragraph implied. Tho plaintiff's case having closed, the Court adjourned at a quarter-past 4 o'clock until 10 o'clock next morning. The hearing of the case was resumed on April 20. Mr Gully having opened the case for the defence, called Frederick William Weston, sub-editor of tho Evening Post, who deposed that he reported tho case v.

Graham on 15th February, 1H92. ITo took a shorthand report of tho proceedings, and also prcparod an abstract of tho proceedings from his shorthand notes. This abstract, which ho considered to bo quite fair, was published tho same evening- in the Post. The paragraph published in the Post on the 16th November, 1891, about Thompson's departure from Wellington was not written by him. By Mr Skerrctt: He took tho verbatim report by engagement with Mr Graham. Mr Graham did not toll him why ho wanted a full report.

Mr Skerrett thought tho witness had relied almost entirely on counsel's opening* for the statement of tho caso which appeared in tho Post. The witness said lie did not think so. On tho question of premiums, His Honor said that his own notes of the case Thompson v. Graham did not show that anything was said about Thompson having been employed, or Graham having endeavoured to assist him, in getting in outstanding premiums. Graham troated the whole amount of outstanding premiums as a debt due to the Company. Tho only question now was whether tho Post's abstract did not exaggerate the amount of Thompson's defalcations. It was an error anybody might fall into very easily. It might have been exaggerated at tho trial.

Edward Thomas Gillon, editor of the Evening Post, said the two paragraphs published in defendants' paper originally appeared in the Post, but without the heading " A Defaulting Fire Insurance Agent." He verified the statements made in tho first paragraph—about Mr Thompson's departure —before it passed from his hands. Ho could not say which of the reporters wroto it. Tho subsequent abstract of Thompson's action against Graham was prepared in the ordinary way. A letter had been received from plaintiff's solicitors asking for a retraction of tho statements made in the Post. Subsequently plaintiff called upon him, and said he did not want to go against tho Post as Mr Henry Blundell had boon a good friend of his, and ho know that witness had no "down" upon him. Witness replied that ho certainly had not a " down " upon him, and asked how ho could help him. Plaintiff replied that the Post had published " a very rough paragraph " about him, and that it would holp him against tho other people if ho (witness) could case him down. Witness got the two pars., and after reading the first one over plaintiff said ho did not so much object to that as to tho second paragraph (tho report of the Court action). That also was read over, and witness asked what was objected to in it. Plaintiff said MiGraham had told a lot of lies and that his solicitors had boon to tho Court, and on looking over the Judgo's notes had found that tho Post's report of the caso went much beyond what appeared in tho Judgo's notos. Witness replied that ho was not responsible for Mr Graham's statements in Court, and that as for the report of tho caso a Post reporter had boon in Court all the time and had taken a verbatim report of tho case, but through some difference as to payment it was not written out in full. 1 Witness said further if any inaccuracy could be shown in the report he would be glad to correct it. Plaintiff, in reply, said ho did not know about correcting tho details, but ho would like witness to say something nice about him, as it would holp him a great deal. Witness answered that he could promise nothing of tho kind. By Mr Skerrett: Ho did not regard his conversation with plaintiff as being of such a confidential character as to preclude him from mentioning it to Mr Gully. No doubt what the plaintiff wanted was a retraction from the Post when he asked to be " easod down."

Robert Edwin Bannister, in the employ of the Evening Pod, said ho saw Thompson about half an hour before lie left Wellington by the ltotorua in November, 18911 Thompson stopped to congratulate him upon his recovery from influenza, but said not a word in the course of conversation about hia approaching departure from the Colony. Yet he was on terms of personal intimacy with Thompson, as well as having had business relations with him.

By Mr Skerrett: It was but a momentary interviow in the street. Francis Sidey, auctioneer, said ho had had two business transactions with the plaintiff before tho latter's departuro from the Colony in November, 1891. Ho bought by arrangement plaintiff's furnituro, and sold his piano for him by auction, making him an advance upon it. Both transactions were carried out in the ordinary way of business.

By Mr Skerrett: Plaintiff told him ho was going Homo, and did not ask him to keep it a secret. Thomas Whitehouse, secretary of Te Aro Loan Company, deposed that at the time Thompson went away ho owed the Company MO. He never notified to witness his intended departure. The only security the Company had from Thompson was a bailment over the piano. His Honor, in summing up, said the jury hal hoard him say several times before that the publication of the paragraph could not bo justified upon the ground that it was a true and faithful report of the proceedings in Court. It did not pretend to be of that character, as it was evidently a mere condensed statement, written no doubt to the best of the reporter's ability, of a proceeding in Court which ho attended, and of which ho made a shorthand report himself. There was no pretence of there being any malice in it, but there were certain inaccuracies assertod. One statement which had been made was | that Mr Hawkins, who appeared as counsel for'the defendant, by his statement, and the sworn testimony of his client, showed Mr Thompson's accounts were at fault. He (His Honor) did not know that it was shown they were at fault. Mr Thompson's accounts after ho left the Phoenix Company may have been complete. That about I the account he afterwards

ference to tho outstanding premiums was a different matter, and there was an inaccuracy in that connection. In tho action tried before himself tho full facts did not como out in reforoneo to several matters. There was tho .£325 said to be owing on premiums, for which credit had been allowed, and which had actually been collected at tho time the action was tried. It would be quito unfair to make a reporter liable for the deficiencies of the evidenco in that respect. Theso matters wore not before the Court directly but only incidentally. Ho would suppose from his own notes that a large part of that .£325 had been collected, and that tho indebtedness of Mr Thompson consisted in the fact that ho had allowed credit to insurers for a number of premiums, and if that was so it would consequently bo true that when ho left tho Company ho did not owo them sixpence. If ho had allowed the premiums to remain outstanding after he had received instructions to collect thorn ho would bo liablo to tho Company for them, and woidd bo indebted to that extent. Tho jury could not bear too strongly in mind, in trying tho accuracy and fidelity of tho report—as it made a difference in the plaintiff's favour, for ho had collected money after lie had ceased to bo connected with the Company — tho collection of the outstanding premiums. There was a balanco of .£59 8s 2d, however, which he had neither accounted for or paid over. Whether that could bo regarded as a defalcation, and whether or not Mr Graham was justified in so pleading it as such, they had no concern with. Mr Graham did regard it as a defalcation, and they could not complain of a reporter who had troated it as a defalcation. Tho great reason why the whole matter didn't como out at the trial of tho counter claim was owing to Mr Thompson's absence. He quito agreed in the law as had been stated by Mr Skerrett as to tho difforenco between reporting certain facts sworn to in tho Court and stating certain facts which wore proved. What a reporter had to confine himself: to was what was sworn to or deposed. Ho might report counsel's opening address, but he {His Honor) nevor knew a rex)ort of a trial being given in which tho evidence was not stated also. It was quite plain that the present defendants had undertaken to justify tho heading to tho paragraph. Newspapers had been warned against sensational headings, but they wero fond of them and made the most of what came. Sensational headings in connection with* law proceedings wero very dangerous, however. Tho title to the paragraph, in this case had to bo justified, no doubt, and it was for the jury to say, on the* facts stated, whether or not its contents justified tho title and that it was a fair inference from what was sworn to in Court. If it was so found, it was justifiable ; but if they found that the abridged statement was not fact, then it was not justifiable. Mr G ully had said tho heading was justified on account of tho <£s9, which was a defalcation. On tho first paragraph ho did not propose to address any remarks to them. Of eourso Mr Thompson's departure threw, or was likely to throw, a considerable shade of suspicion over all his dealings, which may no doubt havo predisposed o very body to think that his acts then ware blacker than they really wero.

After an absence of threo-quarters of an hour, the jury returned a verdict for the plaintiff, assessing tho damages at J 8250.

Costs wero awarded on tho middle scald