SLANDER ACTION FAILS

Waikato Times, Volume 94, Issue 14767, 5 October 1921, Page 6

SLANDER ACTION FAILS

HAMILTON NEWSVENDOR'S OLAIM. ASKED IF "DRUNK. AGAIN." SCENE NEAR A TAXI STAND. Alleging that the phrase addressed to him of "Hello Harold, drunk again?" was slanderous, as suggesting that he was in the habit of getting intoxicated and that it was injurious to him in his business, Harold Welsh, newsvendor, of Hamilton, sued a taxi-driver named Joseph Trotter, who occupies a stand nearby, for £. r >o damages before Mr H. A. Young, 5.M., at Hamilton yesterday. Mr Walshe, who appeared for eomplainant, asked to amend the amount of the claim from £SO to £lO.

To this Mr E. 11. Northeroft objected, as he was confident the case could not succeed under any circumstances, and he thought the costs should be assessed on the higher instead of the lower figure.

His Worship said he would decide this matter later.

Mr Walshe said complainant was returning home from a lodge meeting about 10 o'clock on a recent night, and passed Trotter, who was on Hie taxi stand, when the latter was alleged to have uttered the. words complained of. Welsh remonstrated and demanded an apology in the presence of several people before whom the remark was made, but defendant refused on this and on subsequent occasions to apologise. Defendant, said counsel had, as a result of the incident, been subjected to a considerable amount of banter and annoyance. Counsel mentioned that some years ago complainant met with an accident to his head, which caused him to walk with a peculiar halting step and also affected his speech, and to persons unacquainted with him these peculiarities might easily be mislaken for signs of inebriation. It was distinctly injurious to him, therefore, for the suggestion that he took strong liquor to get about. As a matter of fact he had not touched alcohol for several years. Mr Northeroft said the case was without merit of any kind. Trotter and Welsh had been friendly for a long time and Trotter made the remark in a spirit of banter, as everybody who heard it would state. Welsh poured Lhe most bitter abuse on Trotter's head, and the latter did his best to pacify him, without avail. He had no idea that Welsh was sensitive on this particular point, and he tried to make amenls, but the latter would not hear of it.

Welsh said that after Trotter called out to him, "Helfo, Harold, drunk again," he (plaintiff) asked him to apologise, but he simply told him to get off home. On subsequent occasions he asked Trotter to apologise, but he still refused to do so- He consfdered he had suffered damage to the extent of 5s a day, loss on sales, as a result of people discussing the case with him. When he asked Trotter to apologise the latter told him to go away home, as though he were talking to a dog. In answer to Mr Northeroft, plaintiff said his average takings were £2O a week, but last week they were only £lO 10s. lie had known Trotter for about two years, and had always been on friendly terms with him. Defendant sometimes bought papers from him, and after reading them handed them back. He also sometnies gave hrm f'scconuhand papers. Mr Northeroft: Did you not say to defendant that you had seen better mei; in gaol? Plaintiff: No—l have never been in gaol so could not have seen then;. (Laughter.)

Plaintiff eventually admitted that he did say there were better men in gaol than defcndanl. He (plaintiff) was "worked up" that Dight. and what he said was in heat. He agreed that he (plaintiff) was something of a "wag," and frequently joked with his associates and his customers.

Constable Wade (called by plaintiff) who overheard (he conversation between Welsh and Trotter, said Welsh asked Trotter what ho meant by asking him if lie was drunk again. Defendant replied, "It's all right, Harold, I've known yon long enough lo he aware that you don't drink." Welsh answered that he was not on the street to he insulted by a thing like him (defendant). He got very excited, and when Trotter told him he would be belter to go home and have a rest, he replied that lie had seen heller men in gaol. Defendant said, "Surely 1 have known you long enough, Harold, to have a joke with you." Nobody With any reason would have taken offence out of defendant's remarks. Trotter tried lo quieten plaintiff, hut Welsh followed him up abusing him. Mr Northcroft held that the ease must fail, as no action for slander could succeed without proof of special damage, except in specified instances, of which the present was not one. Apart from this technical point, Trotter did not make the remark with any malicious intent, tint made il in the most friendly, casual, facetious way possible- The very moment Welsh took exception and showed his anger, defendant spoke in ;i very kindly way, and in his subsequent conversation expressed his sorrow for having made the remark. PlainlilT, however, would not accept I his, bul abused dcfendanl in a most violent and vile manlier. Counsel described the Ihing as a storm in a teacup, and said a more unreasonable action lie had never seen brought into Court. His Worship held that the remark was not defamatory, and if it were, plaintiff could nut succeed vvilhotil proof of special damage. .Judgment would therefore he given for defendant, with costs and witnesses' expenses, totalling rt 10s.