JURY AWARDS £l00

Wanganui Chronicle, Volume 85, Issue 43, 20 February 1941, Page 7

JURY AWARDS £l00

MALICIOUS PUBLICATION A WANGANUI CASE LABOURER'S CLAIM IS SUCCESSFUL Damages amounting to £lOO were awarded by a jury in the Supreme Court, Wanganui, yesterday, when Norman Broadmore, farm labourer, Otakeho. Taranaki, claimed £5Ol from Percy Higginbottom, Wanganui, and Purser’s Limited, for an alleged false and malicious publication. Plaintiff, who had purchased furniture from the defendant company, alleged that when still owing £2 5s 3d he received a letter, signed by Higginbottom, containing statements which were libellous. The case was heard before Mr. Justice Smith, and the jury retired at 4.20 p.m. and returned at 4.55 p.m. The defence claimed that the letter was written in the ordinary way, and that no libel or malice was intended. It was also contended on behalf of the defence that the letter was dictated to Higginbottom’s confidential typist, and that nobody, apart from her, knew anything about it. Four issues were put to the jury and the questions asked, and verdicts returned were: Did the defendant, by word of mouth,. dictate the letter complained of to his typist? Or, did he write it out and hand it to her for typing?— Defendant wrote out the letter. Was the letter defamatory of plaintiff?—Yes. Was the defendant actuated by malice?—Yes. Damages (if any) ? —£loo. Mr. R, J. O’Dea (Hawera), appeared for plaintiff and defendants were represented by Mr. J. M. Hussey (Wanganui). The jury consisted of Messrs. E. Gilbert (foreman), H. J. Hall, W. Shardlow, O. Larsen, A. E. Ascott, N. J. Anderson, R. Smith, W. Powell, W. Raisey, W. J. Scanlon, T. J. Dickie and C. W. Philpot. Mr. O’Dea submitted in his opening address that defendant claimed £5Ol damages for the alleged publication of a libel. The defendant company, of which Higginbottom was managing director, was in business at Wanganui and Hawera. On September 20, 1940, said counsel, plaintiff received a letter which was the subject of the present action. In this letter, which was signed by Higginbottom, certain statements were made which were allegedly libellous. Higginbottom, accompanied by the manager of the Hawera branch, subsequently called on plaintiff at his home, and allegedly stated that he was reading the war news before writing the letter and that this news was on his mind when the letter was written. Law of Libel Counsel explained the law of libel, and added that this law required that before an action could be successful, a letter containing allegedly defamatory statements had to be published to a third person. In the present case plaintiff claimed that the third person was Higginbottom’s typist.

Norman Broadmore, farm labourer, married, Otakeho, said he first had dealings with the defendant company in February, 1938, when he purchased furniture valued at £3O 17s. He paid a deposit of £5 and agreed to pay £1 a month. In May, 1939, he purchased further goods, valued at £l3 odd. He did not make a deposit, and agreed to pay £1 a month. He kept up the payments till January, 1940, when he lost his position, but made a payment in February. He had to go on social security in February, 1940, and in April made another payment.

After the April payment £2 5s 3d was still owing, and in July he received a letter stating that defendant company was going to take the goods. He subsequently wrote to the manager of the Hawera branch, explaining the position, and stating that he would call and see him, which he did. The manager asked if he could pay anything, and witness answered in the negative. He arranged to send in some money when he received it, and they were good friends when they parted. He next heard from the companyon September 20, when he received a letter from the managing-director in Wanganui. The letter was dated September 13, and after receiving it witness Went to Hawera and handed it to the police. He borrowed £2 5s 3d the same day and paid the company, and subsequently instructed his solicitor to issue proceedings. Up to this time he had not met Higginbottom, but between November 25 and a date in December defendant and his Hawera manager called at plaintiff’s home. Higginbottom said he was the man who had written the letter and stated that after seeing what sort of a chap plaintiff was he was sorry he had written it. Witness refused to go to his lawyer and “call it off.” Born in New Zealand Witness added that he was born in Inglewood, and that his people were born in New Zealand. Cross-examined by Mr. Hussey, witness said he did not put the matter in his solicitor's hands after defendant had seen him. He could not saywhy no letter was received from his lawyer till December 17. Proceedings were issued on January J!0 last. Mr. Hussey: Are you asking the jury to give you £soo' because you allege this letter was published to Mr. Higginbottom’s typist? Witness: I want satisfaction. You knew he was writing about your unpaid account?—He did not state it. In answer to a further question, witness said he lost his position on January 8, 1940, and was not permanently employed again till July 1. Mr. Hussey formally moved for a non-suit on the grounds of lack of publication of the alleged libel. Counsel submitted also that there was no proof of publication. A statement was made by plaintiff that defendant handed this letter to his typist, but counsel submitted further that if this was so the letter was published on a privileged occasion. According to a decision of the Court of Appeal, the dictating of a letter containing defamatory libel did not constitute defamation.

Following legal argument between Judge and counsel, His Honour ruled that the non-suit must fail. Where a statement was handed to a clerk and

typed, that must be accepted as prima facie evidence of publication. On a question of malice, it must be held that the letter was such that there was some evidence the jury was entitled to consider. Walter Harold Shipton, manager o' Purser’s, Ltd., Hawera, said six months elapsed before plaintiff made a further payment. Witness did not write to him from the Hawera branch during that period. He accompanied Higginbottom to plaintiff’s home. The conversation was mostly or, general things and he couid not remember the exact words. Higginbottom did say he was sorry the letter had been written, but there was no discussion on how it had been written. Cross-examined by Mr O’Dea, witness said he had known plaintiff for about three years and, generally speaking, had found him honest. Witness introduced Higginbottom to plaintiff. Higginbottom said he was the proprietor of the firm which was responsible for the letter being written. He knew that the signature on the letter was that of Higginbottom. Defendant apologised to plaintiff, but witness 1 did not remember him saying that he had read the war news on the day the letter was written. They went to the wrong address at first, but this was the address given by plaintiff.

Defendant’s Evidence Percy Higginbottom, managingdirector, Purser’s, Ltd., said his firm communicated with plaintiff on June 18 and July 18. Both letters were written from Wanganui and on July 18 the firm informed plaintiff that the account was not satisfactory. There was no response to either letter. The letter which was the subject of the claim was dictated t.o a woman clerk who attended to all the correspondence. Witness dictated the letter and she typed the letter and posted it. Apart from witness, she was the only person in the office who saw it. He did not write it out before dictating to the clerk. Witness added that he told plaintiff that he was the man responsible for the letter being written, and said that as he seemed a decent sort of chap he was sorry the' letter had been written. Mr. O’Dea: Is it your usual practice to write letters in this violent language? Witness: No, it is not. What was the reason for writing it?—l wanted to get an answer regarding the account. Do you think it was necessary to use this language for the purpose of getting an answer? —No, I don’t now. Copy of Letter Filed Cross-examined further, witness said a Miss Kingston typed the letter. It was usual to take one copy of the correspondence. Witness dirt not initial the carbon copy, which in this case was retained by Miss Kingston and filed on a debtors’ file. Mr. O’Dea: Other members of the staff could have seen it if they had wanted to? Witness: Yes. Mr. Good could have seen it?—Yes, if he had wanted to. The other member of the staff, Miss Hill, could have seen it if she 1:-:1 wanted to ?■—Yes, if she had wanted to Witness said he was aware that Miss Kingston was written to by Mr. Treadwell, who said they wanted to see her. She did not go. Mr. O’Dea: I put it to you she stayed away on your instructions? Witness: Quite right. Murial Beatrice Kingston, clerk, employed by the defendant company, said all letters were dictated to her and she took them down in shorthand and subsequently typed and posted them. She had never known Higginbottom to write a letter out beforehand. To Mr. O'Dea: She usually destroyed her shorthand script. She did not get a shock when Higginbottom dictated the last sentence of the letter. She did not remember the contents of letters she typed. The copy of the letter in question was put on the ordinary debtors’ file. Mr. O'Dea: In the ordinary course of events anybody could look at the file? Witness: I suppose they do. Do you remember showing it to Miss Hill?—I don’t remember. You remember receiving a letter from Mr. Treadwell last November? —Yes. You did not go to see him?—l did not know anything about the letter and went to Mr. Higginbottom. He told me not to go. Re-examined by Mr. Hussey, Witness said she worked in a room on her own.

After the jury had returned its verdict, His Honour entered judgment for plaintiff accordingly, with costs.