WHY A NEW TRIAL WAS REFUSED

New Zealand Times, Volume XXXIII, Issue 7446, 22 May 1911, Page 4

WHY A NEW TRIAL WAS REFUSED

MASSEY V. THE “TIMES.” MO 'VALID C HOUNDS FULL TEXT OP THEIR HONORS; JUDGMENT As was inti ni:d cd on Suin id ay morning the Chief Justice ami Mr Justice Chapman dismissed Me \V. F. Masseys mo- j tiem for u iifi trial in the libel action | brought by iiim against the New /(*a- 1 land Times.” Following is the full text of their Honors' judgment:— The Chief Justice said: This is a motion for a new trial of this action on live grounds:— (1) That the special verdict or finding of the jury is so defective that judgment cannot be given on it. (2) That tile learned judge misdirected the jury ifi the following matters: — fa) By directing them that they might disregard the evidence of the witnesses as to tho inter;)fetation by such witnesF.es of the cartoon and words which form the alleged libel. (b) By directing thorn that, even if they 'found that the plaintiff was represented by the figure hitching the waggon, they ‘ might properly find that the cartoon and words were a more political skit, and therefore 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 tho defendant company. (3) That the verdict was against the weight of evidence. (4) That tho finding of the jury is not a verdict for the defendant company. (5) That the learned judge admitted improper evidence, to which , the eloiutiff objected distinctly at tho ■ini, namely, evidence of the memory of witnesses of reports of what was said bv members of Parliament m a debate in the House of Representatives, on November 30th, 1910, and in a debate in the Legislative Council on. December Ist, 1910. TILE ALLEGED LIBEL, ■ To -understand this notice, said his Honor, tho matter that was alleged to bo defamatory must bo stated. The alleged libel was contained in a cartoon, whiclh had printed under it the following words: “Hitch your waggon to a star.”—Emorsou. “Hitch youx waggon to a lie."—Dr, Findlay's amendment. The cartoon represented a waggon with painted on its side ‘ V 0 are the party.” It contained boxes or bundles differently labelled. On one '‘Pamphlets Free,” on others Hie following different phrases on different boxes or Bundles —"Startling revelations,” ''expense,’' “private calumny,” “electrifying apparatus,” “dead men's characters,” “Tammany,” “defamation,’ and perched where the driver of the waggon usually sits there was a female figure in ancient dress with the phrase on her dress, “scandal-mongering. At the sine of the waggon there was a male figure, but only Ins back was visible. Ins head bald, coatless and carrying a suspended placard, “Their idea of a politician. This figure was, it is said, hitching the waggon to a donkey which was in the shafts of tho waggon, and which had printed on its neck “Ananias.” Paragraph seven of tho amended statement of claim contained the innuendo Which stated that “The. defendant company meant thereby that the plaintiff who was depicted in the cartoon or pictorial Tepresentati on as hitching a waggon was responsible for the tree distribution of the said improper and scurrilous pamphlet or had taken part in the free distribution thereof and that Hie plaintiff had been guilty of a mean and despicable act and was a liar.” . It was not averred that tile other boxes or parcels had any reference to the plaintiff or that, for example, ho had been vuilty of “private calumny” or • “defamation” or startling revelations,” etc. The whole question was narrowed practically to two things—(l) Did the cartoon mean that he was responsible for tho distributiou of the pamphlet referred to or, had taken part in its free distributiou? (2) Did ,’t mean that ho had been guilty of a mean and despicable act and was a liar? There were no other questions that could under the pleadings have been submitted to the jury. The jury found the following verdict; — (1) Me are of opinion that the figure represents -Hr Massey. (2) We are of opinion, that this is a political cartoon pure and simple, and is not libellous. The figure refirred to was the figure at the side of tho cart. On tho foreman announcing this verdict his Honor Dir Justice Chapman, ■who presided a,- the trial, stated ‘ < ha* is a verdict fo- the defendant.’' The jury did not dissent, and the verdict was so entered by his Honor’s direction. Paragraph (c) of the second ground for granting a new trial challenges this direction saying;—‘By directing them that their special finding was a verdict for the defendant company, and that they, upon inch finding, should give their verdict for the di-itncl-ant company.” It is, as I have said, better to consider this ground Wider tho first head. ONLY ONE VERDICT. I. Taking these grounds in the- order stated in the notice, tho question is, was this verdict a verdict lor tho defendant. To' understand tho verdict a reference must !» had to tho questions put to th£ jury in his Honor's summing-up No formal issues were put to the jury, but in the summing-up his Honor asked them to consider (1) whether Mr Massey was described in tho cartoon as the figure alongside tho cart; (2) whether the cartoon imputed to him that ho had been, despite his disclaimer, connected personally with tho distributiou of this scurrilous pamphlet; (3) as to damages tho plaintiff was entitled r;o damages if the plaintiff made out his ease. In my opinion, the jury, having found tho cartoon was not a libel, as alleged by the plaintiff, there could only bo tine verdict, namely for the defendant. It is clear that the jury- had not misapprehended the issue. Their, Untv was clearly pointed out to them and* their finding was as deal-. They eaid that tho cartoon did not impute to Jlr Massey what he alleged the cartoon did impute. They held it was not libellous. They found no damages, that is, they found that the plaintiff had not made out his ease. Suppose they had found no libel, and had also found damages, there is authority that tho verdict would have been entered for the defendant. (Ross v. Rcith.) In that case the jury found no wrongful dismissal, but

awarded 40s damages. There was a rule to enter verdict tor the defendant or tor I nonsuit: and the Court ordered verdict | to bo entered for the defendant. Suppose then in this ca-e the jury had. alter 110mitiviiie libel, found damages, tho Court could have ordered verdict to be entered for the defendant. In Lees v. -Ireweek, the jury found no malicious prosecution but found one farthing damages. Their Honors Dir Justice Richmond and Mr Justice H. S. Chapman retused a new trial and upheld the direction to enter verdict, for the defendant. It has been held that the finding of damages is u dominant Usnc, but what lias to bo looked at is, what did the jury mean? See under this head other cases that approved the action taken up at UiU, trial (Wilson v. Koari, Dawson v. Reginain, Doyle v. New Zealand Camllo Co.) In I ho Rank of AW Zealand y. Fleming, thedr Lordships of tho Judicial Committuo of tiie Rrivy Council treated qno important issue found against the plaintiff as immaterial. In a ca?o like this there could bo no clearer indication that tho jury intended their verdict to bo for the defendant than that they gave the plaintiff no damages. This disposes ot the first ground, tho fourth ground, and paragraph (c) of tbo second ground. NO MISDIRECTION. 11. Tho second ground is that of misdirection on ground (b), which I have already quoted. Tho statement in tins paragraph does not adequately repr©sent what his Honor said to the jury. During tho argument, counsel for the plaintiff urged that it was his Honors duty to fell the jury that if they found that the figure alongside the cart was meant to be that of Mr Massey, they ought to find that the cartoon meant that the plaintiff was responsible for the free distribution of the pamphlet, or had taken part in its free distributiou, and that ho had been gaiilty of a mean and despicable act, and was a liar. Had his Honor so directed tho jury, he would in my opinion, have been usurping the function of tho jury. I shall state later what this function is. Assuming that this was a ground of objection to the verdict as a non-direction, that amounts to a misdirection which can bo raised under this notice, of which X am, to say tho least, doubtful, it was in my opinion no duty of tho learned judge to direct that in a certain event they must find tho cartoon a libel as defined in the innuendo. That would have been in effect his Honor’s finding and not that of the jury that tho innuendo was proved. Tho plaintiff relied on the opinion of several witnesses that tho cartoon was meant to represent what is alleged in tho innuendo. Many of them gave evidence to that effect. Ills Honor said:—“There are disputed interpretations, but no solid dispute on question of fact,” and he added, “Tho mam question for your consideration will be not anything connected with a conflict of evidence, but what is tho proper • interpretation to place on the piece of evidence, which is admitted, and which you are deemed by law to bo capable of interpreting for yourselves.” It i, was necessary that evidence should bo , called to explain the cartoon, but his • Honor said that in this case they should : carefully consider the argument of coun- ; eel, " because the evidence really comes 1 to be of less importance in this case than ■ in tho ordinary case, for the reason that in the process you are practically speaking converted into witnesses yourselves/’ Was not this correct? They had the cartoon, and if they could not 1 see it was libellous, surely they • were not bound to find it was libellous. To say they wero bound to find a writing or picture iibeli ious because’ witnesses said so and hon- ! estly believed so, would bo ignoring tae j duty of a jury which has to decided iilxil ■ or no libel. The first part of ground two. i.e., (a) has been abandoned by counsel for the plaintiff. I have said that tno summing-up quoted does not profess to fully state what was said. I Snail quote the passage in full. “If I say more than that, I am afraid I shall no repeating myself, but what should I do more tnan anything else is to ask your attention to the way in which learned counsel put tho matter to you in succession, and ask you to test for yourselves, by interpretation of the cartoon, which version you think is the proper one —whether the plaintiff has made out the case of personal imputation to himself was sufficiently pointed to be treated as intentional, or whether ho had not been over-sensitive about an attack on his party. If you think, looking at it in tins way, that this is a libel on Mr Massey because showing a figure said to be his, it pointedly cnargea him with hitching the party waggon to a Jie and pointedly charges him with using pamphlet, that will entitle iiim to a verdict. if it is merely an ordinary political cartoon, as suggested by Mr feoiomon, not pointing in any way as suggested, xt ought not to bo treated as a lined, always bearing in mind tnat tho particular way the plaintiff complains xt hits him is that it connects him with tho distribution of tho pamphlet in such a way as to render , it open to bo said that he has oeen charged with a mean and despicably action. If find it does make such an imputation against Mr Massey, and that it is not merely a justifiable criticism of his party, it is for you to consider what damages you should award.” Tho word “intentional” was used', but his Honor explained it thus: “When I speak of intention I speak of effect. I have explained tho House of Lords’ view on tho point.” His Honor had referred to tho case of Hulton aud Co., Ltd., v. Jones. In my opinion there was no misdirection. A REASONABLE VERDICT. 111. This ground was the main ground relied on. It* was admitted that the Court can, though it has done so only in a few instances, order a new trial if the Court comes to tho conclusion that the writing deemed libellous is, in its opinion, so clearly libellous that no jury could reasonably find otherwise. X-'er-haps tho clearest statement of the Jaw is rnado in the case of the Capital and Counties Bank v. Honty, by Lord Blackburn, in which he said: “It certainly had always been my impression that there was a difference the position of the prosecutor or plaintiff and that of tho defendant. The onus always was on the prosecutor or plaintiff to show that the words conveyed the libellous imputation, and if he failed to satisfy that onus, whether ho had done so or not being a question for the Court, the defendant always was entitled to go free. Since Fox’s Act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to couvev the libellous imputation. If the defendant can get cither the Court or the jury to bo in his favour, he succeeds. The prosecutor or plaintiff cannot succeed unless he gets both tho Court and the jury to decide for liim. Now it seems to me that when the Court comes to decitlo whether a particular set of words published under particular circumstances are or are not libellous, they have to. decide a very different question from that which they have to decide when determining whether another tribunal, whether a jury or another sot of judges might, not unreasonably hold such words to be libellous. In fact, whenever a verdict has passed against a defendant in a case of libel, and judgment has been given in I the Court below, those who bring their. I writ of error on the ground that there was no libel, assert that both the jury and tho Court below have gone wrong; but they are not called upon to say that the words ,wero incapable of conveying the libellous imputation; it is enough if they can make out, to the satisfaction of the Court in error, that the onus of showing that they do convey such an imputation is not satisfied; and there are numerous cases in which, after a verdict for .tho plaintiff and judg-

ment for him, that judgment liars been >x*t aside in error.” In this case cun it lie said, proceeded the Chief J ustice, that it is so clear and mimistakeablo that the* cartoon imputed to Mr Massey the circulating or the asMsling in the circulating of'the pamphlet, and that he wa.s a liar, as to compel a Court to say tho jury could not reasonably have found their verdict? I do not think so. The cartoon, like many political cartoons, was ambiguous. It may or it may not have had the particular meaning attribut'd to it. The fact that the plaintiff relied only on the circulating of the pamphlet and that ho did not say it attributed any connection between the plaintiff ami the other par--1 cels or bundles labelled in the waggon iis surely something that the jury may consider. "Why should the jury have come to tiie conclusion that the only possible meaning was that he had circulated tho pamphlet? 1 am unable to answer that question, and 1 hoard no convincing argument on tho subject from tho plaintiff’s counsel. None of the cases cited go so far as tho Court iniu-.s £o if it ordered a new trial. Most reliance seemed to me to have been placed on tho cases 1 shall now quote anil consider. CASES QUOTED.

First, Mclneniy v. Clarcinau Printing and Publishing Co. The law laid down by the judges in both counts does not differ from what has been affirmed in many cases. Lord Justice Fitzgerald ‘said:—“There vStiil remains the question of the jurisdiction and duty of tho Court in dealing with the finding of a jury upon the question of “111x4” or “no iibci.” In m3' opinion that jurisdiction is in kind and in principle tho same as the jurisdiction to set aside a verdict upon ary ordinary Lsue of fact upon which the jury is tho final tribunal, with exclusive jurisdiction to decide. It is the duty of tho Court not to sot aside a finding upon any such issue as against the weight of evidence, if in its’ opinion the jury could reasonably have found as they did, upon the evidence in the particular case. If there be any difference in the exercise in cases of libel, as distinguished from other cases, fit can only be a difference in degree/* The particulars in that case .show that, as Lord Justice Holmes put it, of the nine charges against the piaiut.tf, “each of thorn is alleged by the plaintiff to be libellous, and It is enough for me to say that in all except one, the charge of laud grabbing, expressed in or accompanied by language of obloquy and menace is brought against him/' There was no doubt as to who was meant or as to what was written. If, then, there was ever to be any new trial in any action for libel when a verdict was given for the defendant, that was sufcli a case. There was no amb.guity either 01 person or assertion. That case can, therefore, afford no aid to this* Court in considering this case. It does not purport to alter or modify the law as laid down in many that might bo quoted. It depended on its particular circumstances. Parmiter v. (Joupiand was a case in which a new trial was granted. That was a case in which a newspaper directly charged a mayor of the Borough of Winchester with partial and corrupt conduct and ignorance of his duties. There was no ambiguity in the writings complained of. Th.s case is valuable in this connection only, in that it was clearly laid down that the judge presiding at the tidal was not bound to give his own opinion as to the nature of tho publication. BayLs v. Lawrence was a similar case. Tho Lord Chief Baron said to that jury: “I.own I find a difficulty in sajmg whether it is a libel or not; gentlemen, can you assist mo? Ho gave no other direction on that issue. Xt was held that tho proper course had been followed. Lord Deman saying that he had‘always followed 'that practice, and the verdict was not disturbed. Tho Australian Newspaper Co., Ltd., v. Bennett was a case iu which the jurjfound for the defendants. There was no doubt what paper was meant, and the word “Ananias” was apx>liecl to tho paper. It was held that that did not necessarily impute to the manager, conductor and part proprietor of tiie newspaper wilful and deliberate falsehood. Notwithstanding that the Full Court in Sydney had set aside the verdict and ordered a now trial, their Lordships # of the Privy Council overruled that decision and allowed the verdict to stand. Their Lordships said: “it is not disputed that, whilst it is for the Court to determine whether the words used are capab 1 © of .the meaning alleged iu the innuendo, it is for the jury to determine whether that meaning was properly attached to them:** and -concluding their Lordships said: —The question therefore is whether in .all.these.circumstances it can 'be said that a. jury of reasonable men could not possibly find that the article, though it contains that which had much better not have been published, did not reflect upon the plaintiff’s character, or even upon his conduct in relation to the newspaper. The jury have so' found and their Lordships are of opinion that it would be exceeding the legitimate function of the Court if the verdict were set aside and a new trial ordered, that the Court would then in reality be taking upon itself the function which the law, has committed to the jury, or looking at the -alleged libellous matter as /a whole and determining whether it is pixblished .of and concerning tho plaintiff, and whether it bears the innuendo which the plaintiff seeks to attach to it.” Hakeweil v. Ingram is no authority in this case. Ail that the Court held was that if the fact of publication was admitted, and that the publication applied to the plaintiff, the Court could sot tho verdict aside and order a new trial if tho Court considered the article clearly a libel. Here the jury have negatived the innuendo. Chief Justice Jervis said tho article imputed to the plaintiff cruelty to his wife and “if that be eo, it is libellous without more/’ Hr Justice Maulc dissented, holding that though he might have found a verdict the other way the function of deciding libel or no libel was for the jury* Macassey v. Bell was a case in which a verdict for the defendant was set but there the Court held that it vns clear who was meant and nefarious conduct was attributed to the tdaintiff. Levy v. Milne was also a case in which a verdict was given for the defendant and set'aside by tho court. # At the trial Chief Justice'Best told the jury it was clearly a. libel. The jury asked whether a shilling would carry costs. The Judge answered in the affirmative and thereupon tho jury found a verdict for the defendants. There, what took place at tlio trial the fact that the person referred to was clear, .and that the libel was clear were held good grounds for ordering a new trial. It will be seen from these leading cases that have been cited that when a verdict for the defendant was set aside two things concurred. It was clear that the writing referred to tho plaintiff and that it was libellous and therefore, such a verdict that no jury could reasonably have given. A few cases may be -cited in which-a'new trial was refused. Broome v. Gordon was a case in which there was no doubt .that tho plaintiff was meant. Chief Justice Tindal said:—“The only question in this case is whether w-e can see that the jury have done manifestly wrong in not finding the alleged libel to bear the meaning that the plaintiff has thought fit to put upon it by innuendo,” and after considering that ho hold there was not sufficient ground for disturbing the verdict. Odger v. Mortimer was another case of a similar character the Court saying that it was a matter for the jury and the verdict was not disturbed. Chief Justice Bovill said: “It is only in cases where the Court can see that the jury are clearly wrong that the Court could interfere.” The plaintiff was called “a political cheap jack, half booby, half humbug.” In Coughtroy r. ‘Evening Star” Co., Ltd., the verdict for the defendant was not disturbed though tho judge said:—“lf I had been trying the case myself, I should for several • reasons have taken a different view and have given judgment for the plaintiff for an amount sufficient to carry costs,” There a misstatement was in fact made in the article reflecting on tho plaintiff. O’Brien v. The Marquis of Salisbury was an action for slander.

The- jury found a verdict for the defendant, There was no doubt as to the person meant. The words used were plain. The question was what did they menu; did ilu-.y impute to the plaintiff that he had intentionally incited t>eo pie to commit an outrage. The )nofound for the defendant. Mr Justice Field after quoting from Broome v. Gordon said: “In other words the jury aro the appointed tribunal ior the decision of tho question of libel or no libel and the Court ought not to invade their province unless it can be plainly seen tho verdict is perverse or so imreasonable as to lead to the conclusion that the jury have not honestly taken the facts into their consideration,” Other cases end text-books might be cited that repeat: the same view of the law. After careful consideration X fail to see how it can he said in this case that there are any facts that must lead to tho conclusion that the jury could not have honestly taken the facts intotheir consideration,'

THE QUESTION OF EVIDENCE. V. The last point is the admission of improper evidence. The evidence complained of was the putting of certain questions to Mr Von Haast, Dir Fraser and Mr Massey, the plaintiff. The questions put were as to what took place in the Louse of Representatives and the legislative Council when the publication and issue of the pamphlet were under discussion. The questions were admitted on the ground that the cartoon could -not bo understood in its relationship to the pamphlet unless tho whole facts about the pamphlet were before the jury. Tho evidence was very elicrt. In his Honor’s notes this is all that is said;—Mr Von Haast’s evidence on the point was:—“No person that I can recall made a suggestion of personal impropriety on Mr Massey’s part. But the suggestions affected Mr Masse;. I cannot name any individual who suggested Mr Massey by name. . . Sir Joseph Ward defended himself. It was pointed out that the pamphlet was distributed free. Mr Massey said that he took that as a suggestion and disclaimed that he had anything to do with it. Did nof Sir J. Ward andothers fully accept his personal disclaimer? Do not reinernber that, but do not dispute it.” Mr Fraser’s evidepce was: “People in the course of the debate disclaimed, some of them very slightly.” Mr Massey’s evidence was—“l don’t say nobody exonerated me. lion. _Mr Duncan (Oamaru) came nearest to it. McLaren —disclaimer. Taylor—“l made no such charge.” I did not believe it. He made a statement which was contrary to fact.'” These witnesses’had all been called to prove what the cartoon meant and in cross examination they were asked these questions to show, I presume, whether their opinion was entitled to credit, considering the debate in which tho plaintiff was a participant, could show that. Assuming iu tho plaintiff's favour that the evidence was not relevant, which, however, I must not be understood as admitting, ae to such matters put in a cross-examination relative to a matter of opinion, it is clear from the way the case was nut to tho jury that this evi-; denco was not relied on as effecting the interpretation -of the cartoon. In fact his Honor ns has been quoted specially directed them to examine the picture for themselves. Our rule as to new trials for tho wrong admission of evidence is rule 277 and it states; “A new trial shall not be granted on tho ground. . . of improper admission or rejection of evidence unless in the opinion of the Court, some substantial wrong or miscarriage of justice ' has been thereby occasioned in tho trial of tho action.” It cannot bo said that the admission of such evidence could especially looking at the summing up have affected the trial at all. , I am, therefore, of opinion that none of the grounds for a new trial are valid and that the .motion must be dismissed with .£lO 10s costs and .£8 8s for second counsel, in all JCIB 18s' and any disbursements. , JUDGE CHAPMAN CONCURS -'ONLY ONE SUBSTANTIAL i QUESTION. Mr Justice Chapman said; —I agree with,the judgment his Honor tho .Chief Justice aiid have very little to add to it. It seems to me that though several questions have been argued, there was really only one substantial question on this motion, namely, whether the verdict was against the weight of evidence. It is i.ot enough to make out that it was open to the jury to find that the cartoon was defamatory and then to point to the finding that the figure standing at the cart represented the plaintiff. The onus was upon the plaintiff to prove at the trial that the cartoon was defamatory of the plaintiff, either because it was designed to defame him or because it had that effect. I assume that there was sufficient evidence to have supported a finding for the plaintiff had the jury taken a view of'tho case favourable to' him. The jury must, however, be considered to have answered that question by finding that the cartoon had not that effect. That is manifestly what they intended to-'find and that is what they in effect said. That now casts upon the 'plaintiff' the additional onus of making out upon this motion that the cartoon necessarily has- that effect and that no construction of it could be adopted by a jv.ry as reasonable men save that it is defamatory of Mr Massoy. It is one of those cases to which tho expression “demonstrably wrong” fairly applies. That is to say the plaintiff must show that tho verdict is wrong by pointing out exJ aotiy in what way it is wrong. Various suggestions were made to the jury and to this Court on this subject, but none or these have created in my mind the impression that, there was only one way of looking at this cartoon and that was that it defamed Sir Massdy in the way pointed out in paragraph 7 of his statement of claim. That being so, the verdict is conclusive. Throughout these proceedings the defendants have disclaimed any intention to make such an imputation nnd they have succeeded iu satisfying the jury, not only that they did not so intend, but that such an imputation has not been made and there the. matter must and so far as this Court is concerned.