 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milne v. Smiths [1892] ScotLR 30_105 (23 November 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0105.html Cite as: [1892] ScotLR 30_105, [1892] SLR 30_105 |
||
[New search] [Printable PDF version] [Help]
Page: 105↓
[Sheriff of Inverness, &c.
In two conjoined actions of damages for slander brought against the wife of the rector of a boarding-school and her husband as her administrator-at-law, and for his own right and interest, the pursuer averred, in the first action, that the female defender in the presence of her domestic servants used certain libellous expressions regarding him; and in the second action, that she falsely and calumniously accused him of circulating defamatory stories reflecting upon her character, and of being the author or writer of a lewd inscription regarding her. It was not averred that the husband authorised or approved of the alleged slanders. The defence of privilege was stated to the first action on the ground that the female defender was entitled and bound to warn her servant against receiving the attentions of a man of the pursuer's known character.
At the adjustment of issues, held (1) (following Barr v. Neilson) that the husband was not liable for slander by his wife, there being no averment of complicity on his part; (2) that where the pursuer's record did not disclose a case of privilege, the words “maliciously and without probable cause” should not go into the issue; (3) that the expression “a low scamp” might stand as part of an issue in context with words unquestionably actionable; (4) that the second action fell to be dismissed as irrelevant.
Question ( per Lord Kinnear) whether the privilege of a master or mistress goes so far as to give the right to defame a third party for the instruction of a servant?
Andrew Milne, draper, Fochabers, brought two actions in the Sheriff Court at Elgin against “Mrs Jane Garrow or Smith, wife of and residing with William Smith, rector, Milne's Institution, Fochabers, and the said William Smith, administrator-at-law for his said wife, and for his own right and interest,” craving decree in each case for £500 damages for alleged slander.
In the first action the pursuer averred that “on Monday 7th December 1891 the female defender, in the kitchen or other part of Milne's Institution buildings, falsely and calumniously stated, in the presence and hearing of Nellie Angus” and three other persons, all domestic servants at the Institution, “that the pursuer was a noted blackguard,” “a low scamp,” and “that he went after every good-looking girl for the purpose of seducing them.”
Page: 106↓
He pleaded that “the female defender having slandered the pursuer is liable in reparation, and the male defender is liable as her administrator-at-law.”
The defenders averred that Mrs Smith had the charge and supervision of the staff of servants employed in the boarding establishment connected with the school; that she had made a rule against the servants absenting themselves without her permission; that (Stat. 3) “the scullery-maid, Nellie Angus, had frequently to be reproved for disobeying the rule referred to, and having admitted on several of these occasions that she had been in the company of the pursuer, Mrs Smith … felt it to be her duty as her mistress to warn her against receiving the pursuer's attentions, his character having become notorious throughout Fochabers owing to the disclosures in an action for aliment of an illegitimate child brought against him in the Sheriff Court of Elgin in 1886;” that she allowed Nellie Angus, with two of her fellow-servants, to go to a ball in Fochabers on 4th December 1891, and afterwards learned that the pursuer conveyed her home at or about 4 a.m., and remained with her outside in the grounds until past 6 a.m. “(Stat. 7) On or about the 8th December Mrs Smith reprimanded Nellie Angus in presence of the cook and housemaid.… Counter statement that the female defender spoke to Nellie Angus about the pursuer in insulting and slanderous terms is denied.”
The defenders pleaded, infer alia—“The statements made by the female defender of or concerning the pursuer being privileged, the action ought to be dismissed.”
In the second action, some months later, between the same parties, the pursuer averred that (Cond. 6) “the female defender called at the pursuer's shop on or about 2nd March 1892, and in the presence and hearing of John M'Intosh, police-constable at Fochabers, and Charles Ross, draper's assistant there, falsely accused the pursuer of circulating statements of a defamatory and incriminating character regarding her and the Rev. John P. Watt. … In particular, she stated that the pursuer had said in the presence and hearing of the dressmakers employed by him, ‘We've got them now. Mr Watt and Mrs Smith have been caught on the sofa at Findhorn.” … (Cond. 9) “On the occasion of her visit to the pursuer's shop on 2nd March the female defender … accused the pursuer of being the author or writer of the whole or part of the writing quoted in article 7 [which was an obscene inscription on a dyke near Fochabers], or used words and expressions implying that she was such, and she has since said date frequently repeated said statements of and concerning the pursuer.” He pleaded, inter alia—“The female defender having by the circulation of false and calumnious statements of and concerning the pursuer, injured him in his business, is liable in reparation, and the other male defender is liable as her administrator-at-law.”
The defenders stated that “on 3rd March last the pursuer sent a message to Mrs Smith, by two of her own servants, to say that if she would come to his shop he would acquaint her who told him certain stories which were being spread abroad affecting her character. Mrs Smith accordingly went to pursuer's shop, when she asked pursuer what he had got to say to her. The pursuer remarked that he supposed she blamed him for certain lewd writing which had appeared on the wall fronting the defender's residence on the morning of 2nd March, to which Mrs Smith replied that she didn't think he did it, but that she thought he knew something about it.”
The defenders pleaded—“(1) Any statement made by the female defender of and concerning the pursuer being true in fact and justifiable, the action ought to be dismissed. (2) The action being irrelevant, the action ought to be dismissed. (3) In any event, the male defender not being liable for any slander uttered by the female defender, he ought to be assoilzied with expenses.”
After certain procedure, the Sheriff ( Ivory) conjoined the two actions and allowed a proof.
The defender appealed for jury trial and issues were ordered.
The pursuer proposed the following issues—“(1) Whether, on or about 7th December 1891, in or near Milne's Institution, Fochabers, in the presence and hearing of Nellie Angus, domestic servant, Reidhaven Street, Elgin, Margaret Johnston, Annie M'Phail, and Annie Dunbar, domestic servants, Milne's Institution aforesaid, or one or more of them, the defender Mrs Smith falsely and calumniously said of and concerning the pursuer, that he was “a noted blackguard,” “a low scamp,” and “that he went after every good-looking girl for the purpose of seducing them,” or did use words of a like import and effect of and concerning the pursuer, to his loss, injury, and damage?” “(2) Whether on or about 2nd March 1892, in or near the pursuer's shop in Fochabers, and in the presence and hearing of John M'Intosh, police-constable, Fochabers, and Charles Ross, draper's assistant there, or either of them, the defender Mrs Smith falsely and calumniously accused pursuer of circulating statements of a defamatory and incriminating character, and of being the author or writer of lewd and immoral language regarding her and the Rev. John P. Watt, minister of the parish of Bellie, to the loss, injury, and damage of the pursuer?”
The defenders argued—Both actions were wrongly directed so far as they craved decree against the husband, there being no averment that he was present or approved or had anything to do with the alleged acts of slander by his wife— Barr v. Neilson, 6 Macph. 651; Scorgie v. Hunter, 9 S.L.R. 292. There were three objections to the first issue—(1) Malice and want of probable cause should be inserted, for it appeared from pursuer's statements and admissions that this was a case of privilege. It was the duty of a mistress to warn her servant against keeping company with a man of the character and under the circumstances
Page: 107↓
admitted, and the privilege covered publication to the fellow servants— Hunt, 7 Times' Law Reports, 493. (2) The words “low scamp” were not actionable— Mackintosh v. Squair, 5 S.L.R. 635. (3) The clause “did use words of a like import and effect” should go out. Where the actionable character of the statements alleged to be libellous depended not on innuendo, but on the very words themselves, as where one person was said to have called another “a blackguard,” no deviation from the exact words should be allowed. The second issue was irrelevant. The pursuer disclosed that serious slanders affecting the female defender were in circulation, and she put it to him on reasonable suspicion whether he was not the author of them. That was not actionable, like a charge of crime or moral offence; it was not even an accusation of telling an untruth, for the pursuer did not say the stories were untrue. Further, the issue and the record were too vague; it was not stated to whom, where, when, and how the defender had said the defamatory statements were circulated. Argued for pursuer—The res judicata in Barr's case was simply that a husband and wife could not be sued conjunctly for separate offences. Here the husband concurred in the wife's defences, and should not be allowed to escape from the action at this stage— Baillie v. Chalmers, 3 Pat. Apps. 213; Fraser v. Cameron, 29 S.L.R. 446. The husband having delegated to his wife the charge of the domestic establishment, was liable for all her acts, whether fraudulent or not, if within the scope of her authority— Mackay v. Commercial Bank of New Brunswick, L.R., 5 P.C. App. 394, and Barwick, there cited; Houlds-worth v. City Bank, 6 R. 1164. The mistress might be privileged in speaking to the girl alone, but not in administering a public rebuke involving defamation of a third party. The particulars desiderated in regard to the second issue must be known to the defender, and it was for her to say. The pursuer wished to have his character cleared of the charge of disseminating such slanders, which was a fortiori of the slanders complained of in M'Laren v. Roberts, 21 D. 183; Watson v. Duncan, 17 R. 404.
At advising—
But then, taking the first action, we come to the question of the first issue. Mr Jameson has maintained that the words “maliciously and without probable cause” ought to go into the issue. I confess to seeing an initial difficulty in the way of adopting that course, for I find that the pursuer's record in the first action contains no averment of that nature. The logical and proper result of Mr Jameson's argument would be that the action should be thrown out, and not that the words “maliciously and without probable cause” should be inserted in the issue. But then the question at this stage is whether the pursuer on his own record has disclosed a situation importing privilege. I think not. If we take his account of these proceedings, the pursuer does not involve himself in any of the elements of privilege. Mr Jameson endeavoured to connect the pursuer stage by stage with matters contained in the defender's statements on record. But at each stage he had to rely either on the defender's own account of what took place or on conjectures as to the facts. But looking, as we must do, at the pursuer's own record, no case of privilege is disclosed. It will, of course, be open to the defender, who has pleaded privilege, to make out such facts as will support her in that position—such a defence will be entirely open to her at the trial. I therefore think that “malice” and “want of probable cause” cannot go into the issue, and that the action does not fall to be dismissed on account of their absence from the record.
The other question raised is that the expressions “low scamp” should not stand as part of the issue, on the ground that they are not actionable. That is not the question. The introduction of so many mere words no doubt adds a little to the difficulty of the pursuer's establishing the whole of his issue, but the words are really added as the context of other words which unquestionably are opprobrious and actionable.
Mr Jameson thinks that if the words in the issue are about the low water-mark of relevancy in point of slander, those words of style “or of the like import and effect” ought not to go into the issue. That is a somewhat difficult contention, but I do not think we are called upon to decide upon it in the view which I take of the position which the words “low scamp” occupy in this controversy.
Then I come to the second issue, and here I think the issue is a fair reflex of the record. Now it is proposed, that in place of calling upon the pursuer to tell the defender what the words were which the pursuer alleges to have been uttered and to be slanderous, that the matter to be tried by the jury should be, “whether the
Page: 108↓
I should like to say, with reference to one of the points argued by Mr Jameson, that my experience of jury cases has led me to think that in most cases the question of privilege is more conveniently raised at the trial, when the facts are before the Judge, than at the stage of adjustment of issues. The forms of issues of slander and the averments necessary to support such issues are now well settled, and the pursuer of an action of damages can almost always draw his condescendence so as not to disclose that the occasion upon which the words used were uttered was privileged. Privilege is something having reference to the occasion, and to the relation between the person who used defamatory words and the person to whom they were addressed. By merely withholding the circumstances which raise the privilege, the pursuer may keep malice out of the issue, but when it appears at the trial that the communication is privileged, the Judge will direct the jury that they must find that malice has been established before they can give a verdict for the pursuer.
There is no question here of “probable cause.” Probable cause is an offence proposed by a person who is sued in an action of damages in consequence of having given information to the public authorities, or for setting the authority in motion, the most ordinary instance being information of a crime given to the police or the procurator-fiscal. The defence of probable cause has been extended to cases of prosecutions under the Customs and Revenue Acts, but it would never be competent to a master in an action against him by a servant, or in any case where there was anything of the private relation of duty between the person said to have uttered the slander and the person to whom it was addressed.
I agree that the case of Neilson is conclusive as regards the husband's liability; indeed, I think there is great force in Mr Jameson's argument that the foundation of the husband's liability for his wife's debts is always resolved into the question of authority given expressly or by implication to contract debt. I rather think that the case of Neilson shows that the true foundation of the husband's liability for his wife's delict is that he must have authorised it, or identified himself with his wife in the proceedings in order that he should be responsible for it.
Then as regards the second action, I am of opinion that there is no substance in it. The statements do not amount to a relevant charge that the defenders had falsely and calumniously accused the pursuer of anything recognised as a crime or a social offence.
The Court pronounced the following interlocutor:—
“Assoilzie the defender William Smith from the conclusions of the first action: Find him not entitled to expenses therein: Approve of the first issue, and appoint the same to be the issue for the trial of the first action as against the female defender: Assoilzie the defender William Smith from the conclusions of the second action: Quoad ultra dismiss the said second action, and decern: Find the defenders entitled to expenses in the second action, both in this Court and in the Inferior Court, and remit the accounts thereof to the Auditor to tax,” &c.
Page: 109↓
Counsel for the Pursuer and Respondent— M'Kechnie— W. Thomson. Agents— W. & J. L. Officer, W.S.
Counsel for the Defenders and Appellants— Jameson— Ure. Agents— Mackenzie, Innes, & Logan, W.S.