COURT OF APPEAL

New Zealand Times, Volume XXXIII, Issue 7851, 13 July 1911, Page 8

COURT OF APPEAL

MASSEY V. THE “TIMES," MOTION FOR NEW TRIAL. Tho Court 5f Appeal was occupied yesterday hearing tho appeal ol AV. I'. Massey against tho decision of the Supremo Court refusing him a now trial of his action for ,02000 damages for alleged libel against tho “ Now Zealand Times ” Company, Ltd. Tho bench was occupied by Justices Williams. Denniston, Edwards, and Bim. , , , . , r .Mr !l. I). Bell, K.C., with him -Mr A. Gray and Air G. ft- Fell, appeared for tho appellant; -Mr S. Solomon, K.C., with him Mr A. AV. Blair, for tho respondent. ALL’EG El) MISDIRECTION. Air 801 l continued ilia argument, referring to special passages in Air Justice Chapman's summing-up to the jury at tho trial. .Particularly ho objected to tho following as being a misdirection ; If it is merely an ordinary political cartoon as suggested by Mr Solomon, not pointing in any way as suggested, it ought not to I/O treated as a libol, always bearing in mind that the particular way tho plaintiff complains it hits him is that it connects him with tho distribution of the pamphlet in such a way as to vendor it open to bo said, that ho has been charged with a moan and despicable action.” By this, his Honor certainly .suggested to tho jury' tlrat a man might bo charged wdth tho distribution of 'the pamphlet, and that tho jury might fmd that this was not a mean and despicable act. His Honor distinguished between a libel on tiro party and a libel on a member of tho party, and failed to inform tho jury that if tboro was a libel on a class, and if an individual was singled out, and either described or depicted as a member of that class, that individual was entitled to a verdict. If tho learned judge did in ono cart of his summing correctly state the rule but in another part used language which might lend the jury to consider tho issue otherwise than correctly, that was good ground for a now trial in such an action fox Jibol. “This is a political cartoon pure and simple, and is not libellous. ’’ should have read, if it were to convey tho moaning intended by tho jury,’ ‘•'and therefore is nob libellous.” It was not clear, oven without tho insertion of tho word “therefore,” whether this was not what the jury really intended. If tho word were inserted, however, it was at once clear that tho jury liad misinterpreted tho law. They ought to have Imon told that having found that tho figure represented Mr Massey, it was not open bo them to find that tiro cartoon was not a libel on Mr Massey. DISPUTED EVIDENCE. . Mr Gray addressed tho court in support of tho ground alleged of tho admission of imr,roper evidence. Tho evidence to which ho took exception was that adduced in tho cross-examination of Mr Von Haast as bo what ho had road in tho newsnapors about a certain debate. The only facts in issue were: (1) AVas Mr Massey meant by this cartoon? and (2) Did the cartoon mean that he was taking part in tho ■distribution of these pamphlets, which both aides in their statements of claim and defence had admitted were improper and scurrilous pamphlets.

FOR THE DEFENCE. THE CASE AS PRESENTED. Jlr Solomon, for tlio defence, said the plaintiff asked for a now trial on tho ground that the verdict was not a verdict for tho defendant, and, secondly, if it was a verdict for the defendant, that it ought to bo set aside on threo grounds: (1) That improper evidence was admitted; (2) that the learned judge wrongly directed the jury; and (3) tlmt tho verdict was against the weight of evidence. In order to arrive at a true conclusion on these points, one must look first of all at the way tho case was presented by • the plaintiff and by tho defendant. Plaintiff submitted that the cartoon represented Mr Massey, and meant that he was tho person who was responsible for tho distribution of the pamphlet. In 'reply to this Dio case presented by the defendant was that the cartoon did not suggest that either Mr Massey or the parts' of which ho was loader had anything to do with the distribution free or otherwise of tho pamphlet. What tho learned judge put to the jury was not, as Mr Bell suggested, that they could find that the cartoon meant that tho party was responsible for tho distribution of the pamphlet and still find that tho cartoon did not imply that Mr Massey was not responsible. His Honor’s summing-up made it quite clear that what ho put to the jury was that if they found the cartoon meant what plaintiff said it meant with reference to himself, whether as leader of the Opposition or otherwise, it was their duty to find for plaintiff, and that they were only at liberty to find for tho defendant if it did not have tho meaning sought to be put upon it, but was a political cartoon having reference’ to the dealings or poKcy of tho party. His Honor made it quite clear that whether the charge was made against Mr Massey alone or in conjunction with anyone else did not matter. Ho (counsel! submitted to the jury that the cartoon did not mean that either tho party or Mr Massey had anything to do with tho distribution of the pamphlet; ho invited them to believe that the cartoon meant the same ns was stated in tho article in the “ Times ” two days before tho cartoon appeared. MU JUSTICE EDWARDS disagrees. Mr Justice Edwards: Tho article says that Mr Massey and his party wero making use of the pamphlet for the purpose of affecting politics. Mr Solomon: Yes. Mr Justice Edwards: That is surely just as libellous as the other! Mr Solomon: Quito so; but it was not pleaded. Mr Justice Edwards: That doesn’t matter. You can’t escape a claim for libel by substituting one libel for another. Mr Solomon: No, your Honor, but if this had been pleaded it would have been quite open to mo to say, “ Plaintiff attaches a particular meaning to this cartoon, and unless ho satisfies the jury that that is tho meaning he cannot succeed.” If that had boon pleaded it would have boon open to

mo to prove that tho suggestion was justified. MEANING OF THE VERDICT. As to the meaning of the verdict, it could bo best ascertained by referring to the case as it was left to the jury bv tho learned judge. His direction was that if they found tho cartoon did moan what plaintiff urged, they must find for plaintiff, hut if found that it was a more political skit having reference to tho policy' of the party in using tho pamphlets and other means, and not meaning that tho party and Mr Massey were responsible for the publication of the scurrilous pamphlet, they would find for tho defendant. There was no justification for tho proposed insertion of the word “ therefore ” in tho second paragraph of tho verdict- A new trial could not lie granted on tho ground that evidence was improperly admitted unless it was clear that injustice had been done. At this stage, before Mr Solomon had concluded liis argument, tho court rose until 10. JO a.m. to-day.