ALLEGED LIBEL.

Otago Witness, Issue 3102, 27 August 1913, Page 61

ALLEGED LIBEL.

FULLER v. THE TRIAD. VERDICT FOR DEFENDANT. AUCKLAND, August 20. An action for alleged libel, brought byJohn Fuller against the Triad newspaper to-day, with a claim for £5Ol damages, was heard • before Mr Justice Edwards .and a special jury of 12 at the Supreme Court this morning. Mr C. M’Grcgor appeared for the plaintiff, and Sir John Findlay, K.C., with him Mr R. A. Singer, represented the defendant. Mr M‘Gregor said the libel complained of was contained in the Triad of March 10, in which it was said of plaintiff: “The fact of the matter is that while John had a shrill and tuneful enough little pipe years ago it is now not muc h more musical than a pig’s whistle, ffe never was a singer of any special merit, because his voice was never properly trained, and he never knew just what to do with it.” It was complained also that the paragraph imputed (managerial) meanness to the plaintiff, the concluding words being : “ His closerfistedness doesn't matter, because that is, after all, his own affair ; but, ah, if somebody could only persuade him not to sing any more.” There were many expressions of amusement in court during the progress of the case. Counsel dealt with incidents in the progress of the proceedings. The first letter sent to Mr Baeyertz complaining of ‘‘Grossly scurrilous and libellous articles” was crossed by an explanatory letter from the former to the effect that lie was not responsible for the criticism and that it got iri without his knowledge. He offered to make what amends lie personally could. Subsequently an interview took place in Wellington between the plaintiff and the defendant, and the latter declared that he had no intention of offering a;i apology-. The action was then proceeded with. It would be shown, said counsel, that the article did not contain comment but statements of fact, and as such was not true. The plaintiff had for many .years been a successful concert singer, and claimed that his voice now was as good as it ever had been; in fact, he had recently toured Australia singing at various places and had in recent months assisted the Auckland Choral Society 7 with oratorios, giving no less than 10 items in one night. The plaintiff gave evidence illustrative of his career as a vocalist, and describing his recent tour in Australia. Witness explained what occurred in the interview between Mr Baeyertz and himself in Wellington in April, when the plaintiff said his attitude would depend on the apology in the Triad. Mr Baeyertz replied in a very precise manner; “There will be no apology.”

Mr M•'Gregor: How does your singing compare now with earlier times? —Much better.

Sir J. G. Findlay: Will this ..article injure’ you in professional engagements?— Certainly—to tell the public that my voice is like a pig’s whistle.

Sir J. G. Findlay; To write in a bantering tone. Plaintiff (indignantly) : Bantering, bantering. It is the most malicious 1 have ever read in my life. Sir J. G. Findlay: Well, you are the most sensitive musician I have ever met.

His Honor: Do you suggest that you lose anything at all by reason of the publication ? Plaintiff: If the article has been widely read, certainly. His Honor; You have been singing at your own theatres for five or 10 years, and do you say that your engagements will suffer? Plaintiff: What I suggest, your Honor? His Honor; Answer the question. Do you suggest that your engagements will be affected ? Plaintiff; If 1 had no theatres no manager would engage me on reading that article.

His Honor: You are not answering the question, sir, and have gone very near contempt of court. You must answer the questions when 1 command. However, you refuse to answer, and I will leave the jury to draw their own inference. The question was repeated, and the plaintiff said the view he took was that if he was bankrupt to-morrow his voice would not be an asset. Plaintiff denied that his voice was thin and nasal, and that his production was bad. “It comes out very easily.” be declared. Sir J- G. Findlay; Like the song of a bird. Plaintiff: Yes, like the song of a bird. Sir J. G. Findlay : If anyone said your voice was thin and nasal, how would you prove that it was not? Plaintiff: 1 would sing to him.—(Laughter.) Sir J. G. Findlay: i)o you know what a pig’s whistle is? Plaintiff: It is very objectionable. Sir J. G. Findlay : Ho you know that the dictionary meaning is a “low whisper ”? Plaintiff: I don't; and I won't admit that the author is right. Sir J. G. Findlay : You should look up the nteaning of the words before claiming £5Ol damages In replying to further questions the plaintiff contended that the article objected to was not criticism, but merely abuse. When the cross-examination of the plaintiff had concluded Mr M'Grcgor proceeded to call expert evidence a« to the quality of the plaintiff's voice, hut this was ruled out on Sir J. G. Findlay objecting, the ground for disallowing it being virtually that experts could be got in equal numbers to pronounce an opinion either way on the matter. No evidence was called for the defence. At the judge’s direction the claim was

amended so that half of the damages was claimed in respect of each imputation complained of. His Honor “in summing up, stated that the first statement complained of was no libel, and the second, implying managerial meanness, was fair comment.' After a retirement of 20 minutes the Jury found for the defendant on bo tty issues, judgment being entered accord; ingly, with costs.