SUPREME COURT.

Star (Christchurch), Issue 1998, 31 July 1874, Page 3

SUPREME COURT.

+ NISI APRIUS. Thuesday, July 30. (Before Mr Justice Gresson and a Special Jury.) The Court re-opened at 11 a.m. DEUBY V. PAIN. Counsel for plaintiff — Mr Garrick, with him Mr Cowlishaw. Counsel for defendant — Mr Georgo Harper, with him Mr Morgon. Special Juey. — Messrs C. R. Blakißlon (foreman), T. Pavitt, F. H. Wilson, H. W. Packer, W.Dymock, J. P. O'Callaghan, C. Bain, W. D. Wood, J. Field, C. Newton, W. Townsend, and C. Bovey. This was an action for slander, in whieli damages woro laid at £1000, together with £500 by way of special damage. Tho issues submitted to tho jury wero : — 1. Was tho plaintiff at the time of tho Bpeaking and publishing of tho slanderous words in tho declaration mtntioned a member of tho Royal College of Surgeons of England, and duly registered as a duly qualified practitioner according to and in pursuance of the provisions of the Medical Practitioners Registration Act, 1869 ? 2. Did tho plaintiff at tho time of tho speaking and publishing of such words as aforesiid, practice as a duly qualified- medical practitioner at Waimate, and had ho and did ho enjoy a practico of the value, and did he hold tho appointments as stated in the plaintiff's declaration ? 3. Did the plaintiff, beforo the time of the speaking and publishing of such words as aforesaid, professionally attend upon George Walter Pain, a member of the Oddfellows' Society, in tho declaration mentioned, and did he treat him with all professional skill and diligence, and did he prescribe aueh medicineß as were adapted to the disorders under which the said Georgo Walter Pain was languishing ? 4;. Djd the defendant;, on or about the fif-

'tecnth day of September, one thousand eight hundred aud seventy-three, falsely, slauderously, and maliciously speak and publish of tho plaintiff in relation to his said profession and the carrying on and conducting thereof by him, the words in the fifth paragraph of the plaintiff's declaration, ami wvro suuh words spoken and published with the meaning and inuendo set forth in the declaration ? 5. Did the dofondant, on divers days and times between tho fifteenth dny of September one thousand eight hundred and seventy-thrco, and the twenty-second day of September, ono thousand eight hundred and seventy-three, falaeh/j slanderously, and maliciously speak and publish of the plaintiff in relation to his said profession, and the carrying on and conducting thereof by hira, the words complained of in the sixth paragraph of the plaintiff's declaration, and were such last mentioned words spoken and published by the defendant with tho meaning and inuendo as set forth in the plaintiff's declaration. 6. Did the defendant, on tho twenty-second day of September, ono thousand eight hundred and seventy-throe, speak and publish to David Cunningham and divers other persons, of and concerning the plaintiff in relation to his said profession, and tho carrying on and conducting thereof by him, the words complained of in the 7th paragraph of the plaintiff's declaration, and wero such last-men-tioned words spoken and published with the meaning and inuendo as set forth in the said declaration ? 7. Were and are the words set forth in the 6th paragraph of the declaration true in substance and effect ? 8. Were and are the words set forth in the 6th paragraph of tho declaration true in substance and effect ? 9. Were and aro the wordß complained of in the 7th paragraph of the plaintiff's declaration, namely — " The doctor has no diploma, if he has, I should like to see it," true in substance and effect ? 10. Were and are the words complained of in the 7th papagraph of tho plaintiff's declaration; namely — " I can bring witnesses to prove that Dr M'lntyre has said if he had been called in sooner he could havo saved my son" true in substance and effect. 11. .Were the words set forth in the sth paragraph of the declaration spoken and published upon tho occasion and under the circumstances in the plea in that behalf set forth. 12. What damages, if any, is the plaintiff entitled to recover. Mr Cowlishaw opened tho pleadings. Mr Garrickshen briefly stated^the plaintiff's case, and called the following evidence : — George Dixon Drury, examined by Mr Garrick : lam the plaintiff in this action. I am a member of the Royal Collego of Surgeons, England. (Diploma put in.) lam the person therein named. (Government Gazettes 29th' January, 1874, and 16th January, 1873, containing plaintiff's name aa a legally qualified medical practitioner, put in.) I am the person referred to there. I was practising as a duly qualified medical practitioner at Waimate in September, 1873. I held two appointments— one in the Loyal Heart of Friendship lodge, M.U., 1.0. F., and tho other to tho Hand-in-Hand Division, No. 2 Temperance Lodge. I held those appointments during September la9t. I held tho appointment in the Oddfellows from the 24th July, 1871, till towards the end of September, 1873. I held the other appointment from December, 1871, until about September, 1873. Ido not hold those appointments now. I had notice given me to resign them about the 15th September laßt. I received the letter produced from the secretary of the Oddfellows' lodge. It is an intimation of dismissal from the office of medical adviser. The secretary of the lodgo waj the defendant in this action. I got a similar letter from tho Temperance lodge about the beginning of September. I think it was dated the sth. I was dismissed from both. I was dismissed on tho 15th of September. I cannot say exactly why I was dismissed, but I fancy it was on account of this slander going about concerning tho death of George Walter Pain. From the Oddfellows' lodgo, I was getting at the rato of £62 2s per annum, while the number of the lodge was belaw 50. If above 50, I was to get at the rate of 27s per head per annum for married members (including husband and wife and family), and 21s per head per annum for single men. At tho time of my dismissal, my income from the Oddfellows was at tho rate of £70 per annum. From the Sons of Temperance I got 26s per head. It was worth to me about £40 per year. My whole income was between £300 and £400 a year. My general practice has suffered very greatly Bince the 15th September, 1873. I knew the the lato George Walter Pain, son of defendant. I attended 4 "' him professionally. The first occasion on which I saw him waß on July 31, when ho called on mo. I prescribed for him such medicines as he required for the disorder from which ho was suffering. I attonded him from that date until about tho 18th August — the time of his death. I think I was at ono meeting of tho Oddfellows in September last ; I cannot 'tell tho exact date. It must havo been towards the end of Soptember. I was invited to attend. Defendant was present on that occasion A Defendant, at that meeting, made statements affecting mo. His son had been a member of the Oddfellows. I believo I loft tho meoting beforo anything particular took place. I attended the lad punctually, and to tho best of my skill and ability. I prescribed such remedies as were applicable to his complaint. Cross-examined by Mr Harper : Tho signature to tho document produced is mine. I received that notice from tho lodgo to determine the agreement, on tho ground that the lodge had dwindled down below 50 members, and thoy thought therefore that I was receiving too much. This was beforo young Pain came to see mo. Tho defendant was secretary of tho lodge. A person named Graham was secretary "of tho Sons of Temperance lodge. I was also dismissed from that lodge. [Letter from witness to the Sons of Temperance put in and read.] I received a letter from the Temperanco Division on tho 6th Sopt. The agreement with tho Oddfellows was not determined in three months from July. Thoro was a meeting of tho Oddfellows' lodge on the 15th Sept. The officers of the lodge were present. Nothing in tho way of slander occurred whilo I was present. I will not Bwear that tho defendant did not mako charges against mo to my face on that occasion. I cannot swear that he mado any charges against me to my face at that meeting. I cannot say whether other persons mado charges against mo at that meeting. I was summoned to attend tho meeting on tho 23rd October with reference to my pecuniary position in respect to the lodge. There was no mention made of my incapacity in any of the notices which I received. The notice from tho Oddfellows pontained a resolution to tho effect that I should be dismissed. Tho witness was

examined at considerable length ns lo hia treatment of the defendant's son, and stated that ho had died of pneumonia or inflamalion of the lungs. Defendant never accused him to his face of being the death of the boy. It was in everybody's mouth iv Waimate that he had treated this boy for a wrong disease. Witness was told at a lodgo meeting and a public meeting that defendant had said so. It. was a public meeting of tlio inhabitants of Waimate to call for another medical man. Witness was told that at both these meetings defendant Blandorcd him. Had never boon told that he hnd done so elsewhere. When Dr M'lntyre saw tho boy on August 12, he was suffering from pneumonia. Re-examined by Mr Garrick : The first time I saw deceased he was suffering from influenza, and complained of a pain in the back. Ab a rule, peoplo suffering from influenza suffer also from painß in the back and pains generally. There is always more or less of fever throughout the progress of every lung disease. The head and brain are moro or less affected when a person suffers from disease of tho lungs. Tho boy took to his bed at my instance. The first time I aaw him I told him to desist from work. At that time I gave him a cough mixture. Witness gave evidence aa to the details of his treatment of defendant's son. The further hearing of the case was adjourned until 10 a.m. next day.