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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christie v. Robertson [1899] ScotLR 36_899 (12 July 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0899.html Cite as: [1899] ScotLR 36_899, [1899] SLR 36_899 |
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Page: 899↓
[Sheriff Court of Forfarshire.
C, who had purchased a horse at an auction sale, on seeing it being led off by R, who was under the bona fide impression that the horse had been sold to him, charged R with attempting to steal the horse. In the course of the quarrel which ensued R was proved to have said of C that he was a “liar,” a “bloody liar,’ and that “he should have been in the hands of the police twenty times during the past five years.”
Held that the words were not defamatory in respect (1) that they were used in rixa as a retort to a charge of theft, and (2) contained no charge of a specific crime.
Per Lord M'Laren—“If a party under whatever amount of provocation makes a definite charge of crime, or a charge of dishonest conduct against another, giving such point in regard to time and circumstances as to lead those who were present to believe that the charge was seriously made, it is no defence that the words were spoken in heat.”
An action was raised in the Sheriff Court of Forfarshire at the instance of James Christie, farmer, Forfar, against William Robertson, horse-dealer, Forfar, concluding for payment of £200 as damages in respect of slander said to have been uttered at a displenishing sale at Bogindollo farm on 13th August 1898.
The pursuer averred that at the sale he purchased a horse for the price of £5, 10s.,
Page: 900↓
and at the end of the sale he observed the defender taking the horse away with him, and called his attention to the mistake, whereupon the defender in the presence of several witnesses made an unprovoked and violent verbal attack upon him “to the effect that the pursuer was ‘a bloody liar,’ and that the pursuer ‘should have been in the hands of the police twenty times during the past five years.’” Me averred further—“(Cond. 5) The said slanderous statements complained of were calculated to injure and have injured the pursuer seriously in his feelings, reputation, and business, and the defender is liable for damages and solatiumn to the pursuer in respect thereof.” The defender averred that the horse in question had been knocked down to him, and that the pursuer had come to him when he was removing the horse, and had used opprobrious language to him, calling him a thief or “next thing to a thief;” that he offered to settle the question by reference to the auctioneer or to the clerk's book; that the pursuer had thereafter called a policeman, and had asked him to take the defender in charge for theft, which the policeman had refused to do.
The defender denied that he had used the expressions complained of, and pleaded, inter alia—“(3) Even supposing that any loss had been sustained by the pursuer through any action or words of the defender, the pursuer, having caused same by his refusal to accept the reasonable terms offered by the defender, and by the use of violent and unjustifiable language, cannot recover damages in this action, and the same ought to be dismissed.”
The Sheriff-Substitute ( Lee) on 18th November 1897 allowed the parties a proof, the import of which so far as material is sufficiently indicated in the judgment of the Sheriff.
On 10th February 1898 the Sheriff-Substitute pronounced an interlocutor by which he found in fact that the defender in the presence of certain witnesses had made the statements specified above of and concerning the pursuer, and “that the words ‘liar and’ bloody liar were used by the defender only as an emphatic form of contradiction of the pursuer's assertion as to the disputed ownership of a horse which the defender had reason to believe had been bought by him, and did not imply any general charge of untruthfulness against the pursuer; that the statement that the pursuer should have been in the hands of the police twenty times during the past five years was false and unjustifiable, and was calculated to injure the pursuer in his reputation and feelings; that in the circumstances the pursuer will be sufficiently compensated for loss and damage caused to him by receiving a sum of £1 sterling: Finds in law that the said latter statement of and concerning the pursuer was slanderous, and that the defender is liable in reparation to the pursuer in respect of the said statement.”
The defender appealed to the Sheriff ( Johnston), who on 11th November 1898 recalled the interlocutor of the Sheriff-Substitute and found that the defender had uttered the words quoted above or words to the same effect, that “said statements of and concerning the pursuer were false, but that they were uttered in rixa and after provocation: Finds therefore in law that said statements were not actionable, and assoilzies the defender from the conclusions of the summons.”
Note.—“The occurrence out of which the action arises took place at a farm displenishing sale. Both parties in bona fide believed that a certain colt was knocked down to him at £5, 10s. The horse had in reality been knocked down to the pursuer, but the clerk to the roup, by a most incomprehensible if honest mistake, led the defender to believe that it was his, and on his instructions substituted in the roup roll the name of defender's principal, a Mr Callender. I find no reason to doubt that the clerk was the cause of the whole dispute, and that the defender honestly believed, and was allowed by the clerk to believe, though erroneously, that he had purchased the colt. When the colt with two other horses was being led away by defender and his man, the pursuer intervened and a quarrel arose, in course of which defender gave vent to some horsecouper's Billingsgate. But the only serious expression was used after defender had offered most reasonably to settle the question by going to the auctioneer or to the clerk's book, and pursuer had declined this offer, and after pursuer had given defender in charge to the police on what, even if the word ‘theft’ was not used, could only be in substance a charge of theft.
“I agree with one of the witnesses that there is not much to choose between the parties, and though the defender ought not to have used the words in question, I hold that they were used in rixa and after considerable provocation, and that they were therefore not actionable. Further, I do not believe in the pursuer having suffered either in character, feelings, or in pocket.
I should have hesitated about giving expenses, but that the pursuer maintained on appeal his right to substantial or, as I should in this case term them, vindictive damages.”
The pursuer appealed to the Court of Session.
Argued for appellant—There was no law to the effect that rixa was a good defence to an action of damages in respect of a slander. If a slanderous statement were made falsely it was presumably made maliciously— Wilson v. Purvis, November 1, 1890, 18 R. 72; Ramsay v. M'Lay & Company, November 18, 1890, 18 R. 130. Here there was clearly a malicious intention of injuring the pursuer. Even if it were held that the pursuer had suffered no damage, and he was only awarded a nominal sum, he would be entitled to expenses, this action being one for the vindication of character— Bonnar v. Roden, June 1, 1887, 11 R. 761.
Argued for respondent—The words had been uttered in rixa after great provocation.
Page: 901↓
They were merely words of vulgar abuse and not slanderous— Cockburn v. Reekie, March 8, 1890, 17 R. 568.
Now the facts are very simple. It appears that the pursuer and defender were attending an auction sale. Each thought that a particular horse had been knocked down to him at £5, 10s. One would hardly have expected that a horse of that value would excite so keen a competition for ownership. But the parties were hot tempered. The pursuer, seeing the defender walking away with the horse, made insinuations. Witnesses differ as to the exact words used, but I can hardly doubt that the insinuation was that the defender was dishonestly endeavouring ts carry away his horse, because the pursuer followed up his words by going in search of a policeman and telling him to take the defender in charge. There can be no doubt that the policeman was sent for, and we have his evidence, which is to the effect that he found on inquiry that there was nothing but a dispute on matters civil, in which he declined to interfere. I refer to that circumstance because it throws considerable light on the conduct of the defender, when he, not being in a good humour, proceeded to make his retort. The Sheriff-Depute, altering the judgment of the Sheriff-Substitute, has found that the statements concerning the pursuer were false, but were uttered in rixa and after provocation. It is not quite clear what the words used by the defender were. On record it is stated—passing over the accusation of his being a liar—that the words were “the pursuer should have been in the hands of the police twenty times during the past five years.” The defender admits having made an allusion about the police, but puts it rather that the pursuer had been so unfortunate in his proceedings in the civil court, that he ought to have a policeman to look after him. That sounds rather like a revised version of the words used; but supposing that the expression as put on record is proved, as I am inclined to think it is proved, then the first question that arises is whether we can sustain the Sheriff's finding that these words, which he says were false but does not say were calumnious, are justified by the fact that they were spoken in rixa. Now, giving the meaning appropriate to the words of the Sheriff's finding, I think it amounts to this—that it is in law a defence to a false accusation that it was spoken in heat when parties were quarelling. I am not prepared to affirm that proposition. If a party, under whatever amount of provocation, makes a definite charge of crime or a charge of dishonest conduct against another, giving such point in regard to time and circumstances as to lead those who were present to believe that the charge was seriously made, it is no defence that the words were spoken in heat. But then it is a very relevant consideration, when weighing the evidence, to consider that the words were spoken in heat for the purpose of finding out the true sense in which the words were used. Another consideration bearing on the same point—the sense in which the words were used—is whether the charge was definite or indefinite. Now, this is a jury question. I do not propose to elaborate it; but looking first at the circumstances that this was no definite charge of crime, but a vague statement that the pursuer should have been in the hands of the police twenty times within the last five years, that the words were spoken in anger, and that the defender himself had been either directly or constructively charged with theft, I should think it the most unlikely thing in the world that any of the bystanders understood the language of the defender as importing that the pursuer was known to the police—a person who had committed crime or had frequently been accused of crime. I think they would understand the expression as meaning nothing more than mere abuse intended by way of retaliation for the charge that had been made against the defender himself. That being so, it follows, in my opinion, that although the words were not true, still they were not calumnious, because they were not used in a defamatory sense, or with the intention of causing an injury to the pursuer in his character and feelings. The case appears to me to be of the same type as the case of Cockburn v. Reekie, which was cited to us by Mr Adamson, where the defender in the course of a quarrel said to the pursuer “I will put you in prison”; and the late Lord President, in commenting upon the evidence, said that the words were admittedly used, but that they would not bear the construction which was put upon them. He adds, “I think it is a most unreasonable and forced construction, because the only imputation with which parties were dealing was one of neglect of duty.” Now, I think that in a dispute as to the ownership of a horse which had been knocked down at an auction sale, it would be unreasonable to think that vituperative language used by either party was intended to have or had anything to do with a criminal charge; and on that ground I am of opinion that the finding of the Sheriff should be recalled and the defender assoilzied. As regards the expenses in the Sheriff Court, which are part of the merits of the case, I am unable to see my way to propose that the defender should have these expenses, because I think he does not come into
Page: 902↓
The
The Court pronounced this interlocutor—
“Recal the interlocutor of the Sheriff dated 11th November 1898 under appeal: Find in fact that on 13th August 1897, at a waygoing sale at Bogindollo Farm, the defender uttered in presence of the persons enumerated in condescendence 3 the words set forth in that condescendence or words to the same effect of and concerning the pursuer: Find in fact that the said words were not used in a defamatory sense, and were not so understood by the persons in whose hearing they were uttered: Therefore assoilzie the defender from the conclusions of the action: Find no expenses due to or by either party in the Sheriff Court or in this Court, and decern.”
Counsel for the Pursuer— Salvesen— Gunn. Agents— Mackay & Young, S.S.C.
Counsel for the Defender— N. J. Kennedy— Adamson. Agents— Archibald & Menzies, S.S.C.
