SUPREME COURT

Taranaki Herald, Volume LXIV, Issue 145084, 8 September 1916, Page 5

SUPREME COURT

CONCLUSION OF QUARTERLY , SESSION. CLAIM FOR £5Ol, DAMAGES FOR - SLANDER. At the Supremo Court on Thursday afternoon, before his Honour Mr. Justice Edwards, the rase was continued in which Ernest Neilson (Mr. A. 11. Johnstone, ‘ instructed 1 by Messrs. Clarke, Douglas and Dunn, Pa tea) claimed £5Ol damages for slander from James Augustine M'Kenna (Mr. L. Cohen). , The defendant, in evidence, said ho had been a residen t of Pa tea tor 36 years. Ho had been on very .good terms with Noiison until about two years ago, and he used l to giv ( e him all the business ho could. Some years ago ho sold out to two of his employees, but the business began to go back, and although prohibition orders were taken out against them, they still continued to got drink. Ho suspected Neilson of supplying them with drink, and told him that if ho caught him lining so ho would prosecute liim. That broke off their agreeable relations, and Neilson had since been in the habit of ''chucking off” at him. On .March 28 witness left the Masonic Hotel with Santom, who had arranged to take it over. He saw plaintiff talking to Mnrlor in front of the Albion Hotel. As ho passed them, about a yard away, he heard the plaintiff make the following remarks: ‘'Have yon got any hotels for sale? Do yon deal in hotels? Do you want any bailiffs to put in?” Neilson said this so that it cook! be heard live or six yards away. Sansom was on witness’ left. Witness turned round and said to Neilson; “You're a damn rotter. Don't speak to me.” Neilson did not make any reply. Witness went into the private-box lobby and Sansom into the main office. There was no one within 50 yards when the words wore used, except the plaintiff, .darter, Sansom and witness, llosshter was not there. Witness rejoined Sansom on the footpath outside the post office, and they walked over to Konworthy’s simp on the other side of ihe,_ road. When witness eamo out he saw Neilson coming up. Neilson said; 1 “You old b-——, I’ll fix vou.” Witness told him to go away. Neilson then said: “You old h-—-. How many houses have you burnt down?” Witness turned and said; “That my thanks for getting your brother back 'from Nelson.’] Witness then walked away, accompanied by Sansom. He had never used in his life such words as “dirty b mongrel.” lie did not say “You ought to bo in gaol.” Ho bad known Noiison over since he had been in Patea, and knew of nothing Neilson had done to cause him to lie imprisoned. He knew .Neilsou had not been in Nelson. He did not uao the word “gaol” at all. Ho did not see Mrs. Mcnbonnot on the footpath. He, bad had no intimation, directly or indirectly, from Neilson that he was aggrieved until the writ was served. Witness was very sorry to have used any angry words, but no was irritated bv plaintiff’s action. Witness, when Mayor of Patea, had many years ago used his influence with the Ministry of the day to gel plaintiff’s brother out of the Nelson reformatory. Unfortunately for Patea wan not progressing as it might do, as he had a tot of property there. He had not boon on good terms with Menheunct. To Mr. Johnstone: There was no trouble between young Menhonnct and himself. Witness was acting as manager of a brickyard at the lime Menbonnet was given notice of dismissal from the brickyard. A valuable piece of machinery was missing. Witness informed the police, and Menhcnnot wan charged, the ease being dismissed. Ho was positive that Neilson used the words “You old b d." and “Vou old h r.” Ho could not say why ho did not tell his counsel that the former expression was used. He could offer no explanation of the various statements. The freehold of tho -Masonic Hotel was owned by Mrs. Hancock. On Mu rub 28 Mrs. Hancock owed him a sum of £I7OO. Ho had a mortgage over Smith’s lease of £BOO, at 7 per cent, lie thought. •Smith went bankrupt, and witness had to take possession. He dirt not know whether Sansom had signed the lease. Sansom did not lake the mortgage over. For the goodwill of tho new lease Sansom owed him about £ISOO, which would be secured by hill of sale and terms, not yet agreed to. He had never had a mortgage on a public-house property except that of .Mrs. Hancock's. Witness, not Sansom, held the lease. Ho admitted previous conviction and fine for assault and battery in 1886, also another for a similar conviction in 181)3. Ho had always shunned plaintiff lately, because he was always “throwing off,” and never replied to taunts, fie could not remember one person who was on Neil son’s cab. lie did not piny bowls with Neilson last season. Ho was quite positive of it. Plaintiff knew that witness had had to put a bailiff in tho Masonic Hotel, as Smith would not pay the rent. Ilossitter’s evidence was absolutely false. Sansom and witness were on friendly terras. They had only discussed the case a very few times.

To Mr. Cohen: Ho denied absolutely that he used the language which Martor. Rossitter and Mrs. Monhcnnot said ho did.

Charles Arthur Sansom, occupier of the Masonic Hotel at I’ntca. said ho entered a-s licensee of the hotel on April 3 last. On March 28, when he was walking with M’Kenua towards the post office, and they were crossing towards tho post office, he noticed Noilson and Marter talking. J nst as they wore passing witness heard Neilson remark, “Are you doing anything in hotels? Do you touch hotels? Do you effect sales in hotels?” With that M'Kcnna turned and said, “Don’t you dare speak to me, you d—• rotter. You low-down blackguard.” After rejoining M’Kenna, when they had done their business, Neilson came up to M’Kenna aud said, “Look hero. M’Kenna, I’ll fix you, you old b ” M’Konna turned round and said, “Go away. I don’t want to speak to you. 1 don’t want to have anything to do with you.” After that, Neilson said, “You b sod, how many houses have you burnt down?” M’Kenna remarked “That’s tho thanks I got for getting your brother out of Nelson.” Witness did not soo Kossitter or Mrs. Menhennel. To Mr. Johnstone: He did not hear Neilson say “Are you wanting bailiffs to put into hotels?” Ilossiter might have been near the corner of .the post office, but witness did not see him. He had known M’Kenna for four or five months., M’Kenna was a fairly quicktempered man. This concluded the evidence for the defence. Addressing tho jury, Mr. Cohen submitted that the evidence for tho defence had been given by witnesses who had spoken tho truth. Although the plaintiff had brought forward more witnesses, the numerical evidence in a case did not always count; it Was the way in which the evidence was given. The plaintiff had .admitted that between Christmas and New Year he had engaged in three bouts of fisticuffs, and for one he had to apologise through the

Press to one party* - Plaintiff had not conducted himself with propriety. Neilson’s remarks about hotels as M'Kenna passed aroused M'Ketuxa’s ire, and he became angry and said, ‘To ud—— rotter.” It must have been, a poignant remark to have evoked that reply from M'Kenna, who acted unwisely in replying to it. Plaintiff had not given any intimation till August 12, ’nearly five months, to M'Kenna that he wanted his character rehabilitated in a belated .Supreme Court action. Would the jury think that an action for heavy damages was necessary? A man had no right to bo made any better off than he was. The words alleged to have been used by the defendant were no more than the mere “tongueirig” one man would give to another when he was angry. There was a direct conflict of evidence, he submitted, and someone was not telling the truth. This was not a secret, illicit, sneaking slander, hut the words used were used openly and straight to Ncilson’g face.

Mr. Johnstone submitted there was ample proof that the statement made in the statement of claim was absolutely true. The plaintiff and his witnesses had not been shaken in the slightest. If his witnesses’ statements were true, those for tho defendant wore not. Further, he submitted that if Siinsonrs evidence was true, then M'Kenua's was not. Sansom did not hear anything about “hotels for sale ’ or “bailiff's in hotels.” M'Kenna could not bring forward anyone who had heard Neilson “chucking off” at hint.. M'Komm’s memory was very treacherous, as tho jury had had evidence of. It was with reluctance that lie (counsel) had had to bring up old incidents that were not creditable. M'Kenna s resentment was such that all at once he bubbled up and referred to a little kindly act lie did nearly twenty years ago—-probably tho only one ho had ever done. What would bystanders think if they had heard the language complained of? Whatever honours had been neaped upon Mr. M'Kenna by Patea people, the fact remained that ho still retained the use of vulgar language that was common to many. The words “You ought to bo in gaol ” and “I got you out of Nelson," counsel submitted, imputed the commission of a criminal offence, and therefore damages shoiml bo assessed. Plaintiff was not out on a money-making expedition, but lie wanted his character rehabilitated, only reasonable and substantial damages were asked for. if the jury found that plaintiff and his witnesses were believed. Plaintiff was a working man. in a position of trust; defendant vas a well-to-do man, the contemptuous “big man of Paten.” The words were spoken in the. public street, with shops and public buildings near by, and the slander possibly got much further than was known. Tho only way that the plaintiff could sot himself right in the eyes of the public was to bring the case to Court. _ _ , His Honour «aid nine-tenths of too evidence brought before the jury was utterly irrelevant. There wore only three questions: Wore the words complained of spoken; could they ho constructed to moon that plaintiff had committed some crime; or, were Hoy merely words of abuse. There was nothing in Neilson’s remarks to provoke the language attributed t to M'Kenna, which was quite unjustifiable and calculated to provoke a breach of the peace. If tho words wore not spoken, then it was plain that there was a deliberate conspiracy on the part of plaintiff and his witnesses. : Mar ter was a young soldier, going to risk his life, a stranger to Neilson, and if his story was concocted ho must have been got at through the post. Ho had nothing to fear or hone from either party. Nither Rossi tier nor Mrs. Menhennot had anything to gain hv swearing false evidence. Tho words, “You dirty b y mongrel.” might he spoken by anyone who either wanted his head broken or to appear before a bench of justices. The other statements. “Y r ou ought to be in gaol ” and “1 got you out of Nelson.” could not bo said to be abuse. Ono witness swore that when she heard them, slie immediately naked what plaintiff had done that he should be in gaol. His Honour was of opinion that plaintiff had only taken the proper course to clear his character of any aspersions cast upon it by bringing the matter before Ibo Sunreme Court. I’laintiff was in a small way, a tab driver, while defendant was tho great man of the neighbourhood. Ho had acted in several public, positions, and could apparently occupy them again if he wished, at feast such was the inference to he drawn from the defendant’s own statements. Further, and most important, he was a Justice of the Peace, and a man in his position should take care not to let his longue run away with him. His Honour said ho did hot attach any importance te the old stories that had been revived during tho evidence. A man might be very quarrelsome, and yet be a perfectly upright man. Tho questions for tlio jury to consider were:—(l) Were the words spoken. (2) Do they inferentiallv charge plaintiff with a crime for which he should be sent to prison. (3) If so. what damages is tho plaintiff entitled to recover. The jury retired at 4.22 p.m. and returned at 5 p.m., with a unanimous verdict for the plaintiff for the full amount of the damages claimed. Mr. Johnstono applied for judgment in accordance with the jury's finding. Mr. Cohen asked his Honour to reserve his decision pending the settlement of certain legal points. His Honour said lie could not interfere with the amount of damages assessed. He, had said at the conclusion of tho plaintiff’s case that he certainly would not non-suit at that _ stage. However, he was willing to give Mr. Cohen an opportunity to argue his law points. , r i Tho case was accordingly adjourned te Wanganui for further consideration on Monday next.