£15 DAMAGES AWARDED

Southland Times, Issue 24165, 29 June 1940, Page 14

£15 DAMAGES AWARDED

Claim By Pie-Cart Proprietor

LONG EVIDENCE IN SLANDER ACTION

INCIDENT AT SOUTHLAND RACES Damages amounting to £l5 and costs £lO/6/- were awarded William Graham. pie-cart proprietor, of Invercargill, in an action for slander heard before Mr R. C. Abernethy, S.M., in the Magistrate’s Court yesterday, in which he claimed £25 from John Rattray, a retired carpenter, of Collingwood, Invercargill. Rattray was. alleged to have made a false and jnalicious statement about the plaintiff in a cafe in Invercargill on April 13. The case which was opened on Tuesday and occupied a full day yesterday, Mr I. A. Arthur appeared for the plaintiff and Mr J. C. Prain for the defendant. Arthur Graham Heywood, a taxi driver, of Invercargill, said that he was waiting for Graham and Rattray at the racecourse. Graham was sober but Rattray was not quite sober. Graham said to the witness: “Take this man home.” Rattray got into the car and the witness drove him to Buller street at Waikiwi. Rattray did not pay the fare as Graham had engaged the car and said that Rattray would probably not have any money. Rattray paid part of the fare as he didn’t seem to have any more money. The witness paid the remainder of the fare himself and secured a meal at the pie-cart as payment. This was the usual procedure when Graham had a hire. Detective Sergeant Thomson and Constable E. L. England also gave evidence “I said at the beginning and I say again that this is a most serious case concerning my client,” said Mr Arthur. “He is virtually on trial for a criminal charge of robbery. There is obviously one feature which does not reflect credit on my client and that is the quantity of alcohol which figures m the case. He expects criticism on that ground, but at the same time he places a high value on his reputation for honesty and straight dealing. The fact that my client has been guilty of an overindulgence does not entitle the defendant to blackguard him with impunity” “The defendant doesn’t know what money he took to the course,” he added. “He seems quite confident for some reason that it wasn’t £3O. He goes to the races with money in his pockets. He gets very drunk and hasn’t the remotest idea what horses he backed. He wakes up next morning and wonders how he got home and where his money is. Up to that point many a drunkard could tell the same tale,” he added.

“MASS OF CONTRADICTIONS”

Mr Arthur went on to review the evidence of the defendant at length. “The whole evidence of Rattray is a mass of contraditions,” he said. “He didn’t know the horses he backed and he didn’t make al soing bet except in the last race. Rattray says that he had five £5 notes in a wallet in his inside pocket and they should have been intact. He hadn’t touched them during the afternoon. Where is the evidence that Graham touched them? The only evidence is that Graham put his hand in Rattray’s right-hand trouser pocket. I submit that the defendant has failed to prove that Graham robbed him. There was a dispute as to how much my client took from Rattray at the racecourse, but Graham did not rob him.” Mr Arthur asked for judgment and claimed that the allegation of robbery had not been proved. After a short retirement the Magistrate said that he was not prepared to decide the case until he had heard the plaintiff’s evidence. '

PLAINTIFF’S CASE Rita Eileen Holmes, of Invercargill,, said that she was working in the kitchen attached to the tea-rooms at the Southland races. The witness saw Graham and Rattray together after the races and their actions were amusing. Rattray had fallen down and Graham was helping him. Graham was holding up three £5 notes in his hand and called out to those watching to remember that it was Rattray’s money. Both had had liquor. Graham came to see the witness and said he was very worried about money and asked what actually happened at the racecourse. The witness told Graham that he had £l5 belonging to the other man. To Mr Prain the witness said that Graham called out that the notes he took from Rattray were £5 notes. He could have had other notes but the witness did not see them.

How did Graham know to go to you to ask about the money?—l had been speaking to Graham earlier in the day at the races. He must have remembered seeing me at the window. He remembered seeing you at the window, yet he did not remember taking the money from Rattray?—l couldn’t say. Edith Sellars, Elizabeth Tomlins and Gladys Margaret Miller gave similar evidence.

Albert Herbert Jensen, hotelkeeper, Wallacetown, said that Graham had given him £95 and £lO worth of winning tickets on Boswell to keep for him on the first night of the races. The witness gave Graham the tickets the next day at the races. Graham gave the witness another £l5 on the second night of the races and a few minutes later Graham borrowed £5 back. Rattray was with Graham at the time and could have seen it handed over. Alexander Neil McLeod, a pensioner of Invercargill, also gave evidence. In evidence the plaintiff said that never at any part of his life had Rattray financed him in his business. When the witness was in Australia Rattray cabled him £lO for a business transaction. It was not a loan and the witness returned the money to Rattray when he came back from Australia.

£3O ON BOSWELL Referring to his betting the first day of the January meeting at Invercargill the plaintiff said that he finished the day with £95 in rash and £3O worth of winning tickets on Boswell. “When I take liquor it often affects my memory,” continued Graham, who went on to relate several winning bets he had made at Riverton at Easter but had not known of them until the next day. When Rattray saw the plaintiff the day after the races he said that he had been “ratted.” Rattray was unable to remember any betting he had done. The plaintiff remembered lying alongside Rattray after t! races but the following day he h 1 no recollection of interfering with Rattray’s money. “Rattray told me that he knew who took his money,” continued the plaintiff. “I asked him who it was and he said, ‘You have got it.’ Rattray said he knew a man who had seen me take the money from him. I was quite worried about it and wanted to know who it was as I was anxious to get the whole thing cleared up. I then remembered

seeing one of the women at the window. I found it was Mrs Holmes and I went to see her. She told me that 1 had £l5 belonging to Rattray. I told her I was pleased to know what happened. She related everything that happened and most of it came back to my memory.” The plaintiff said he then met Rattray and said to him; “Well Jack the matter is cleared up and I have got your money. I have £l5 belonging to you.” The plaintiff went with Rattray to see Jenkinson, who told them that the plaintiff had pulled some money from Rattray’s pocket and counted out four notes. Jenkinson said that he would not swear there were four notes as there may have been three. The plaintiff borrowed £l5 from a Mr Forde and then handed it to Rattray. He said to Rattray: “Well, Jaek, I am pleased this has been cleared up. I hope you don’t think I was putting it across you” and Rattray replied: “No I don’t. It has only been a lapse of memory.”

“AN UNSAVOURY CASE” “It is an unsavoury case, but at the same time the part is to deal with what is behind it,” said the Magistrate in giving judgment in the plaintiff’s favour. “This is a case between two men who both admit they had taken to much liquor. That is not a criminal offence, but it leads to trouble such as this.”

“Rattray has failed to prove to the Court how much was actually taken by Graham,” he continued. “Graham took the money in full view o' the women and a man who were about. I am satisfied that Grabar had too much to drink. On his own admission he is a man who consumes a lot of liquor at times and I do believe that he does suffer a lapse of memory Graham’s story appears quite a correct one but the whole thing is an unsavoury matter. It har not been satisfactorily explained in all its aspects and I am not completely satisfied with the plaintiff’s evidence nor with the defendant’s evidence. It is - case in which a jury would give the plaintiff the benefit of the doubt on the evidence before the Court. The theft has not been sufficiently proved an' although it may not be true the plaintiff’s explanation is a possible one. Were the evidence put before me today on a charge of theft I would not convict on it. That being the case the defence must fail.” The plaintiff was allowed £l5 damages with costs £lO/6/-.

SECOND SLANDER CASE MAGISTRATE NON-SUITS PLAINTIFF A second action for slander was heard in the Magistrate’s Court before Mr R. C. Abernethy, S.M., yesterday when William Graham, pie-cart proprietor, of Invercargill, claimed £lO damages from Catherine Rattray, married, of Collingwood, Invercargill, alleging that a false and malicious statement about the plaintiff had been made by the defendant in Dee street, Invercargill, some time in April.

After evidence had been taken the Magistrate non-suited the plaintiff. Mr I. A. Arthur appeared for the plaintiff and Mr J. C. Prain for the defendant.

Thomas Shaw, pensioner, of Invercargill, said that he met the defendant in Dee street during April and she said to the witness: “What do you think of your cobber, Graham, now.” The witness replied: “What has Bill done?” and the defendant said that Graham had thieved some money from Rattray. The defendant assured the witness that it was true.

To Mr Prain the witness said that he thought it was in April that he met Mrs Rattray on the street. He was not certain, however. The defendant, Catherine Rattray, said that she knew the witness, Shaw, by sight and remembered speaking to him on the street one day. The defendant did not use the words that Shaw had attributed to her.

The Magistrate said that there was insufficient evidence to prove the case and the plaintiff would be non-suited.