ALLEGED LIBEL.

Otago Witness, Issue 2923, 23 March 1910, Page 34

ALLEGED LIBEL.

BERTLING v NEW ZEALAND TRUTH. WELLINGTON, March 16. To-day, before the Chief Justice and t special jury, Albert Ernest Louis Bertling, superintendent of the Wellington Zoo, claimed £2OOO damages from. John Norton, publisher and proprietor of New Zealand Truth. Plaintiff alleged that on or about Saturday, March 27, 1909, defendant falsely and maliciously printed and published of plaintiff certain libellou matter. There were other similar charges for lleged libellous statements concerning plaintiff. Plaintiff urged that by reason of the statements reflecting on his work at the Wellington Zoo, hie nationality, and his general qualifications, ind an alleged suggestion that he was glad to sever his connection with the London Zoo he had . been greatly injured in his reputation and in his profession, and had been brought into public odium, ridicule, and contempt. Mr H. H. Ostler (with him Mr F- B. Sharp) appeared for plaintiff, and Mr £. M. Wilford (with him Mr W. Dunn) for the defence. Defendant in his statement of defence admitted tha' on March 27, 1909, on April 10, 1909, and on June 12 and 26, 1909, he published certain articles on the conduct of and 1 with reference to the Wellington Zoo. He denied that the words were published falsely and maliciously, or tha' the same were libellous or defamatory, and he affirmed that they were In their natural and ' ordinary signification true in substance and fact; that in so far as they consisted of comment they were fair and bona fide comment upon matters of public and national interest were published as -such by defendant as a public journalist without malice and for the benefi' of the public nd not otherwise; ' that they were not i.rapable of e malicious or defamatory meaning, and it was denied that the words " severed his connection " (witii the London Zoo) and other contained' in the seventh paragraph of the mended statement of claim were used ironically o_ that they were used] to mean that the nlaintiff had been discharged from the London Zoo pr had left under circumstances discreditable to him ; finally it was denied tha' plaintiff had been in any way injured in his reputation ind profession by the statements published. Mr Sharp, in his address to the jury, said that the plaintiff was claiming £2OOO for libel. These damages were assessed 'iftei careful consideration of three points—(l) That the libels were repeated on ,-more . than one' occasion and were extremely coarse and offensive; (2) that the allegations trad spread to likely em- . ployers of plaintiff in Australia, to the management of the Sydney, Brisbane, an Perth Zoos; and (3) that in the defendant's journal an apology was published which .'was not an apology a all but merely added insult to injury. Counsel proceeded to read the statements on which the claim was based. In txmching on the published statement that the iguanas at the zoo had not been properly treated and cared for, he said ' it would be shown that there had' never been any Australian iguanas -m the Wellington Zoo. As to -plaintiffs alleged appointment to the local zoo through the good offices of Mr T. E. <Donne by tele- . gram, counsel said that so far as they knew Mr Donne had nothing whatever to do with Bertling's appointment. Bertling had never been a clerk in the London Zoo as alleged. Mention was made by counsel of plaintiff having, it was stated, severed his connection with the London Zoo and "was glad" to take charge of chamois .which were coming out to New Zealand. It was contended that that assertion contained a harmful innuendo Attention was drawn to the heavy mortality which had occurred at the Wellington Zoo, but Mr Sharp read copious extracts from a, zoological classic to indicate that animals in. caotivity were extremely hard to rear. The position in this connection was that , 'when animals and pets in private captivity began to fail they were considered fit for the local zoo. Counsel showed good work with birds at Rotorua, and in' rearing animals at New- ■ town Park. Before being employed at the London Zoo as head keeper, with special charge of the birds, plaintiff was examined by a board of experts as to his fitness for the position, and was appointed to that position in 1904. Bertling resigned from the gardens to take charge of "chamois going to New Zealand Newsnaner tributes to his exoertness and testimonials from zoological enthusiasts and his employers were read by counsel. These all testified to plaintiff's practical knowledge of ornithology and animals. For his successful voyage out with the chamois, in which all the alnimals arrived safe, the Tourist Department gave him a bonus of £ls. After filling several positions in New Zealand Bertling saw an advertisement in an Auckland paper of the position open at Newtown Park, and applied for and obtained the same. Letters of commendation as to his work "ajt the Wellington Zoo were also read. Mr Sharp , gave notice of his intention to ask the jury to visit the* 700 that they might dee for themselves the present condition of the gardens. Albert Bertling. plaintiff. superintendent of the Wellington Zoo, stated that he had had practically a lifelong experience with animals. He mined the ' staff of the London Zoo in 189/ as clerk in the office there. A clerk in those -gardens had to have had experience with animals. «nd had to answer correspondence and tend the inmates oi the zoo in the absence of the superintendent. He was six years in tjmt office, and after a. r«.winWion oi the gardens in

1904 witness was appointed head keeper with charge of the birds. Witness underwent an examination by 12 or 13 of the most influential members of the Zoological Society before he was appointed. Witness had £30,000 worth of birds and 30 or more underkeepers under his charge. Witness was instrumental in the Duke ox Bedford presenting £SOO worth of animals to the Wellington Gardens. He left the London Zoo at the end of 1906 of his own volition, and because there was no chance of advancement. Witness was appointed, after a consultation with the authorities of the London Zoo, to bring out the eight chamois to New. Zealand before he left. He was made a member of the Agricultural Societv. He had contributed several technical articles to the society's journal. The chamois arrived in excellent condition. Witness was 19 months chief ranger at the game preserves at Rotorua. There he was mostly concerned with the rearing and feeding of birds. He applied for the appointment of superintendent of the Wellington Gardens in the usual way. It was quite untrue to say that he was pitchforked into the position. Mr Donne had absolutely nothing to do with it. He was no protege of Mr Donne's, so far as he knew/ There were about 97 animals in the gardens when he joined in 1908, and 12 months later the number was something over 520. At- present there were over 550 animals at Newtown Park, and witness had given away or exchanged a good number. Questioned as to the statement that certain animals had died within a fortnight, witness said that only three of those named had died. He contradicted other allegations of neglect and improper treatment of animals at Newtown Park. £IOOO DAMAGES AWARDED. PROPOSED APPLICATION FOR NEW TRIAL. WELLINGTON, March 18. - The case in which Albert Ernest Louis Bertling, superintendent of the Newtown Zoo, claimed £2OOO as damages for libel from John Norton, proprietor of the newspaper New Zealand Truth, was concluded in the Supreme Court to-day. The jury found that the plaintiff had been libelled, and awarded him £IOOO. The case was heard by his Honor the Chief Justice, Sir Robt. Stout, and a special jury. Mr H. H. Ostler and Mr P. B. Sharp appeared on behalf of ehe plaintiff. The defendant being represented by Mr T. M. Wilford and Mr A. Dunn. His Honor in summing up said the articles complained of were an attic!- on a man's business capacity. If the evidence did not uphold that the plaintiff was incompetent and unfit for tho position he held he must succeed. It was for the jury to say whether the articles complained of constituted fair comment. In order to be so defined they must contain no misstatement of fact, for it, was impossible to reason fairly from wrong premises. It was very important, therefore, that the facts stated must be correct—not only correct' here and there. There were not many zoos in Australasia —about half-a-dozen all told —so that if the plaintiff lost his position in Wellington he might have a difficult task to get employment such as he had been brought up to. The paper had been sent to Australia" to people in charge of zoos there, as the evidence taken on commission showed, so that the result of this, case mie-ht have a far-reaching effect. The jury must therefore remember that • the plaintiff was suing to defend himself in his position. His Honor then dealt in particular with the various charges made by Truth. Could such a phrase as, " garrulous German galoot," applied to* the plaintiff, be reckoned as fair comment on a public official or was it merely abuse? There was surely no harm in being a German. The jury would jiave to determine whether the whole trouble had not really arisen out of Bertling's rejection of the lioness. Mr Bates had wanted the lioness, and Bertling did not. giving as his reason that it was diseased and suffering from rinisets. There was ample evidence that the animal was so afflicted, and still is. Did Bertling's attitude in that. particular instance exhibit, incompetence? One of the articles called Bertling an "imposter." Could anything be stronger than that? It not only meant that he had imposed on the City Council at the time of his .election, but had imposed for nine years on Dr Chalmers Mitchell and others in charge of the London Zoo. According to two witnesses —Quill and Quinnell, —20 per cent, was a fair average death rate in a zoo. In this case it was not half that, and there were not the buildings and conveniences of all the older zoos, but the plaintiff had had to struggle with all the difficulties of starting. The jury would have to say whether this low death rate was not a greater tribute to the plaintiff's competence than all the testimonials in the world. On the question of damages, his Honor said that if the plaintiff had been wronged at all damages should be awarded him. If only nominal damages were allowed him it wouldi mean that he should not have brought the action. The jury was entitled to look at the behaviours of the defendant and his counsel. Not only had the statements been published in the paper, but they bad been repeated time after time in the court, and were persisted! in right up to the last moment by counsel. If the jury felt that the plaintiff had suffered from the defendant's action they should award him such damages as would recompense him for whal he had suffered and. vindicate him in the eyes of the '-public. The- jury retired at 5 o'clock and returned exactly half an hour later. The issues put them by the judge and the answers returned were as follows:—(1) Were the articles mentioned in the statement of claim libels on the plaintiff?— Yes 12) Were the statements of fa.r>t. in

the said article true? —No. (3) Were the said articles fair comment?—No. (4) What damages, if any, is the plaintiff entitled to receive?—£looo. The following rider was added: —■" The jury desires to add that in their opinion the evidence in this case has not only failed to establish the charges against the plaintiff, but has fully proved his competency for the post he holds." His Honor entered judgment for the plaintiff accordingly. The matter of costs having been settled, Mr Wilford asked for an order for stay of execution for four days pending application for a aew trial on the grounds of misdirection by his Honor. The order was made.