ACTION FOR SLANDER.

Otago Witness, Issue 2997, 23 August 1911, Page 58

ACTION FOR SLANDER.

TOWNLEY v. NYHON. An action for slander came before his Honor Mr Justice Williams and a jury of 1 in the Supreme Court on the 21st. The plaintiff was William John Townley, of Otago Peninsula, cattle dealer, and the defendant James Joseph Nyhon, of Otago Peninsula, farmer. The allegation was that on May 10 last on the Peninsula main road Nyhon had falsely and maliciously spoken and published of plaintiff in relation to his business as cattle-dealer the words " You have been stealing cattle for. the last 50' years." Plaintiff alleged that in consequence of this he had been injured in his creclit and reputation as a cattle-dealer, and be claimed £5Ol as damages. Mir Wm. C. MacGregor appeared for plaintiff, and Mr A. C. H-anlon for defendant. . _ Mr MacGregor said both plaintiff and defendant lived on the Peninsula, were well known to each other, and their places were about a mile apart. The statement of defence was simply a denial of the use of tlie words complained of, but there was no doubt that, if it was proved that the words were used, defendant had dered plaintiff, and had accused him of a crime in relation to his business, and plaintiff was entitled to recover damages. The facts were that Townley and Nyhon were fairly well known to each other for years, and had had business dealings together. On May 10 of this year, which happened to be a Wednesday, Townley had been at, the Cattle Yards at Burnside attending to his usual business, and was returning to his home on the Peninsula between 5 and 6 o'clock driving cattle with hun which he had purchased at the yards. He was going down the main road leading down the Peninsula, somewhere in the neighbourhood of Highcliff, when he was overtaken by Nyhon and his two brothers, who were driving in a trap. The Nyhons were going faster than Townley. Townley had just passed the corner of a cross road) which ran down to the Ocean Beach, and the Nyhons drew up opposite him, and James'Nyhon, the defendant, roso up in the trap and said what was complained of. Townley said "Good evening," and Nyhon replied, " Did I ever tell you that I blamed Jack Young for striking my horse on the head?" Townley had scarcely times to reply 'Yes"—because it was a fact — when Nyhon broke out in a loud fashion: "You lying . You have- been stealing cattle for the last .50 years." Townley was quite innocent of the charge, and simply sat staring at Nyhon, who drove on. Townley went home, and thought over the matter, and a few days afterwards went and consulted his solicitor, who wrote to NyhOn on May 19. (The letter read was a request for an advertised apology, and the cost of same, otherwise legal proceedings would be taken). No reply was ever received to this. Another Wednesday Townley was going along the road when he met James Nyhon riding along alone. He was again riding faster than Townley and Mr Hanlon objected and asked if his learned friend was entitled to open this. They were there to answer a charge of May 10, and now his friend was opening something that happened weeks later. His Honor: Is that before the writ was issued? Mr MacGregor: Yes, your Honor. His Honor said Mr MacGregor could bring in otlwr evidence but plaintiff could not recover damages in respect to a later statement. ' Mr Hanlon: Why should defendant not have notice of the fact that a second slander was uttered. His Honor: I don't know that they aro bound to give you notice of it. They are not suing upon the second slander. It is admissible. Mr MacGregor, continuing, said that at the second meeting Nyhon repeated his language, and reallly repeated the charge he had made. Coining back to the 10th May. learned counsel wished to explain that "the first thing James Nyhon said to Townley, after the latter had said '" Good evening," was, '* Did I ever tell you I blamed Jack Young for striking my horse on the head?" You etc." The explanation of this was that on that very day Nyhon had been before the Police Court in Dunedin upon a charge of perjury. There had been legal proceedings between Nyhon and Young, with whom Townley was connected by marriage. There were several charges and counter charges in the prosecution of James Nyhon I with perjury. The case had been going on, but Townley had no interest in, the proceedings, - and Mr John ' Mac/ Gregor, who was appearing for Young, had, it appeared, made application at the close of the case to bring further evidence for the' prosecution, and mentioned Townley as one of the additional witnesses. The charge against Nyhon was that he had committed perjury in the course of one of a number of assault cases, he (counsel) thought iti was, in which he had said Young had endeavoured to poke a stick into his (Nyhon's) horse's eye. The magistrate had dismissed the charge of perjury. Mr John MacGregor had stated in open court that he was j entitled to call other witnesses, one of whom was Townley, to give evidence against Nyhon, and Nyhon evidently resented this, and vented his spite on Townley. Nyhon did not drink, and what happened was therefore simply an outpouring- of his venom. Nyhon had thought that no one but himself and his brothers and Townley were about when ho said what he did, but two men were a few yards away and overheard the part where Nyhon spoke so loud and said, " You have been stealing cattle for the last 50 years." As to the question of damages, the £5Ol was simply fixed upon to enable plaintiff to get the case heard before a jury of 12. Plaintiff in his evidence stated, with regard to the second meeting with Nyhon on the 12th July, that Nyhon came up, and after looking about asked him how his hangman father and murdering sister were getting on. Witness made no reply. Nyhon's dogs went barking after the cattle, and. Nyhon called out to them to let the cattle alone, and to come out of there—that the cattle might belong to Matthewson, and _ lie (Townley) was sending them to Addington, where he sent all his stolen cattle. Evidence was also given by Robert Jury, William Wcstfold, and Edward Hellyer. The first two were the witnesses referred to by Mr MacGregor who had overheard the words complained of in the statement. Hellyer said he was on the 12th July working near Shiel Hill, and saw plaintiff and defendant on the

road. He heard Nyhon say something about driving cattle, and he last heard Nyhon say how was the murderous crowd from the other end doing. Mr Hanlon, in opening the case for the. defence, said the jury would have been able to see by the cross-examina-tion that the defence was simply a denial that the words complained of were used by Nyhon. Nyhon said he never made use of the words, and it resolved itself into a question of the credibility of wit- ' ncsses. If it was true that defendant did accuse plaintiff of being a cattle-stealer tor years, he would- have made out his but defendant had to be considered. Ihe question was, had it been proved to the satisfaction of the jurv that defendant had made use of the language complained ot m the statement of claim. Townley brought along two of the most hopeless witnesses ever Wrought into a witness*?°x- The jury had hoard Jury and Wertc y answ ered quite glibly and eonnned then- evidence to the one statement, but once thev were taken beyond that—beyond what they had rehearsed—they were lost. It was plain these two men had come forward for the purpose ot saying they heard the one thing and nothing else. On. the other hand, the jury would hear the evidence for the defence. lhe ] defendant and- his two brothers would be called, and Air Garr, who was a relative, would tell them that there was only one man in the vicinitv. That man was Jury, .and ho was away down the road, about 300 yards away. That was the only man Garr -saw about there. He vWrr) was g6ing down the hill, and had a i S< i opportunity of seeing. who was about. The two brothers were with Nyhon in the trap, and was there any reason why they should not be entitled to credence just as much as Townley or these other witnesses that had teen raked up. It lewnley knew Jury had left him a *f w minutes before he must have known that Jury was about. The 6tory that would be told 'by .Nyhon and his brothers was quite as worthy of credence as the story told by plaintiff. Defendant would tell the jury that it was quite true that lownley and he had been friends, and wore friends up to this time. Thert were proceedings, and Townlev was to be called, and therefore Nyhon,- when he overtook him on the road, asked him if it was correct. He. said "Good evening," and lownley replied "Good evening; how, are things to-day?" Nvhon answered' X irst-rate." Townley then said, "Oh, it s a- 11 right if they are." Nyhon said . Did I ever tell you or say to you John Young struck my horse?" and Townley replied, "Yes, you did, and you told the boys also. ' Nyhon then said, " Did I tell them about Andrew Matthewson's six yearlings ?" Townley became Very angry, and said, " By , you will get ' two years to-morrow, you •-. and I will do all I can to get it for vou." Counsel explained that these six" vcarlings of Matthewson's were taken away and put into trucks belonging to Townley's sons, and were taken away north to Addington! The police were put on the track, and the cattle were found in the possession of theyoung Townleys in Addington, but proceedings were stopped by some payment being made. They were purchased. This remark made Townley very angry, and he became excited and said, " J3y £—, you will get two years to-morrow,' and I will do my best to give it you." The trap containing the Nyhons then drove on. Evidence was given by defendant, by ' John Thomas Nyhon, Michael Henry Nyhon, and James Garr. At 5 p.m. the further hearing "of the case was adjourned till next morning. Tuesday, August 22. After hearing further evidence in the case of Townley v. Nyhon, counsel addressed the jury, and his Honor summed up. The jury at 3.20 p.m. returned a verdiiet for plaih'tiff, assessing the damages at £25. Judgment was entered accordingly, costs on the lowest scale; 6gs for th«second day.