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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Godfrey v. W. & D. C. Thomson [1890] ScotLR 27_865 (10 July 1890) URL: https://www.bailii.org/scot/cases/ScotCS/1890/27SLR0865.html Cite as: [1890] ScotLR 27_865, [1890] SLR 27_865 |
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Page: 865↓
[
Terms of a newspaper article
which
it
was
held
would
not admit of being
construed
as representing (1) that the pursuer had entered into a
dishonest
arrangement to sacrifice his political principles
for
the sake of pecuniary gain; (2) that he had obtained liquor by
falsely
and
fraudulently
representing himself to be a bona
![]()
fide
traveller, and had thus violated the statutes anent the sale of
drink;
(3) that he had
drunk
alcoholic liquors to such excess as to produce intoxication.
A newspaper published an article referring to
certain
persons
who
had lately held a political meeting. The article
concluded
![]()
with
these
words—“Now
one of them has ‘left the town.’ Any information as to his
whereabouts
![]()
will
be thankfully received by a sorrowing landlord, the proprietor of the hall,
who
now
concludes
that a Tory
Cleon
is no more profitable as a tenant than a Socialist Boanerges.”
One of the persons attacked brought an action against the proprietors and publishers of the newspaper, averring that this paragraph
was
meant to refer to him.
Held that the paragraph
was
slanderous and
could
be innuendoed as representing that the pursuer, being liable as tenant or otherwise to pay the rent of the hall used
for
said meeting, had secretly left the town
without
leaving any address, and
without
making provision
for
payment of said rent,
for
the purpose of
defrauding
the proprietor of the hall.
On Saturday 19th April 1890 the
following
article appeared in the
Dundee
![]()
Weekly
News—“A
few
![]()
weeks
ago a local ex-
councillor,
![]()
whose
views political are
well
known to have a
decided
![]()
Conservative
twist, imported
from
the
far
![]()
west
the
champion
bantam of the Tory
corner
of the
controversial
middenhead on Glasgow Green. On such as
could
be induced to listen to them in our own
city
(
fledgling
![]()
city)
they poured their eloquence in
copious
![]()
floods
like the overflow of a sewage
farm,
and then they hied them to the
country,
lectured the benighted
Forfarians
on the error of their Gladstonian
ways,
and to such as
dwell
in Kirrie preached the glad tidings of the gospel of
coercion
![]()
for
Irishmen only.
“Back again in Juteopolis. A
commodious
hall
was
hired in the
centre
of the
city,
and the illustrious stranger advertised to perform in public on the afternoon and evening of a
certain
Sunday, each performance to be preceded by an open-air ‘
display’
in
defiance
of the ‘law and order’
which
it is the object of his political
creed
to maintain. This latter ‘
function,’
however,
Page: 866↓
would
have jeopardised the performer's licence, and
did
not
come
off, much to the annoyance and
disgust
of those
who
had assembled in the expectation of
witnessing
another
dramatic
arrest. But the events of the evening made amends
for
the morning's
disappointment;
and here I must introduce other two
characters
to my reader's notice.
The
first
belongs to the genus gutter socialist, and runs a variety show not
far
![]()
from
the hall in
which
the great event of the evening
was
to transpire. The
directors
of the two establishments
were
supposed to be at mortal enmity, the one
with
the other; but
when
the
coppers
had to be
drawn
in they
could
![]()
discover
a gushing tolerance, sink all
differences,
stand one on each side of the ‘plate,’ and smile blandly as the
faithful
![]()
dropped
in their offerings. On this occasion it must needs be so, or both meetings
would
be a
failure.
A messenger
was
therefore
dispatched
to the High Priest of the Great
Divide,
inviting him to
close
his temple, ‘bring over his
coworshippers,’
![]()
crack
a louse on the alter of toryism, and half the proceeds
would
be his.
The other almost baffles
description.
He is by repute a quondam agent
for
the good ‘old
cause;’
and now, through posing as a
Conservative
![]()
working
man, acts as a
faithful
henchman to any leader of a paying
concern.
He, too, had his part to play in the ‘Tory Socialist’
Comedy,
and the part
was
one of passing importance to the ultimate success of the plot.
The meeting
was
over, and our three
friends
![]()
were
by no means gratified. The proceeds, such as they
were,
![]()
were
all in one pocket; and, though their throats
were
![]()
dry
as those of the Israelites
when
they viewed the arid sands of Horeb, no
friendly
‘public’ gave them
welcome,
and no Moses bade
water
![]()
flow
![]()
from
the paving-stones. But a greater than Moses stood there,
who,
opening his mouth, spake to the other two in the Glasgow Tongue, saying, ‘Go to, now
with
the rod of bona
![]()
fides
![]()
will
I smite the rock of the Sunday liquor laws, and
we
![]()
will
![]()
drink
and be satisfied;’ and,
dodging
round the rear of a passing vehicle, they passed unobserved, as they supposed, through the portals of a
certain
hotel,
where
they
drank
their own good healths, and the very good health of each member of their late audience separately, and now one of them has ‘left the town.’ Any information as to his
whereabouts
![]()
will
be thankfully received by a sorrowing landlord, the proprietor of the hall,
who
now
concludes
that a Tory
Cleon
is no more profitable as a tenant than a Socialist Boanerges.”
The present action
was
brought by Alexander Godfrey,
commission
agent, Glasgow, against Messrs
W.
&
D.
![]()
C.
Thomson, the printers and publishers of the
Dundee
![]()
Weekly
News,
for
payment of £500 in name of
damages
![]()
for
slanders alleged to be
contained
in the said article.
The pursuer averred—“The pursuer has
for
thirty years been a
warm
and
consistent
supporter of
Conservative
principles, and
for
many years has been in the habit of giving political addresses in the
Conservative
interest in Glasgow and various other places in Scotland. In this
way
the pursuer has been
well
known as a public speaker and lecturer on politics… . The said paragraphs above quoted are of and
concerning
the pursuer, although in almost every particular they grossly misrepresent his actings on the occasion referred to. The pursuer
was
lecturing in
Dundee
in April last, and
from
![]()
Dundee
he
went
to
Forfar,
![]()
where,
on the 3rd of April, he received an invitation to
deliver
another political address in
Dundee.
He accordingly returned to
Dundee
and addressed an audience of about 400 persons on the Sunday evening referred to in the paragraphs quoted… . The said paragraphs
falsely
and
calumniously
represent that the pursuer
from
mercenary motives entered into a plot or
dishonest
arrangement
with
the aforesaid Socialist speaker, under
which
he
was
to sacrifice
for
the time being his political principles in order that an audience of sufficient size might be secured
from
the joint meetings that had been
collected
to listen on the one hand to Socialist views, and on the other to the exposition of
Conservative
principles. The said paragraph
falsely
and
calumniously
represents the pursuer as a political adventurer
who
had no real regard
for
the principles he professed to expound, but
was
ready to sacrifice them at any moment
for
the sake of pecuniary gain.
Further,
the said article (paragraph 5)
falsely
and
calumniously
represents that the pursuer on the occasion in question obtained liquor in an hotel in
Dundee
on said Sunday by
falsely
and
fraudulently
representing himself to be a bona
![]()
fide
traveller, and thereby violating the statutes anent the sale of
drink,
and also that the pursuer
finished
the evening in a state of intoxication. Lastly, the said article
falsely
and
calumniously
represents that the pursuer, being liable as tenant to pay the rent of the hall
for
the evening in question, had secretly left
Dundee
![]()
without
leaving any address, and
without
making provision
for
payment of said rent,
with
the view of
defrauding
the proprietor of the hall of his just
claims
![]()
for
the rent of same
due
![]()
for
said evening… . The
whole
of the statements specially referred to
were
![]()
written
and published by the
defenders
maliciously, and
for
the express purpose of vilifying the pursuer and holding him up to public
contempt
and hatred. In
consequence
of said statements the pursuer has suffered serious loss and
damage.
… If the slanders are not authoritatively silenced, the pursuer's prospects and means of livelihood
will
be seriously impaired, and his
character
![]()
will
be permanently injured in the estimation of many members of the public.”
The
defenders
pleaded—“(2) The paragraphs
complained
of
do
not bear the meaning alleged, and
without
such meaning are not libellous. (3) The paragraphs
complained
of being a
fair
![]()
criticism
of the
conduct
of the pursuer as a public person, and thus privileged, the
defenders
should be assoilzied.”
Page: 867↓
The pursuer proposed the
following
issues
for
the trial of the
cause—“(1)
![]()
Whether
the said article or part thereof is of and
concerning
the pursuer, and
falsely
and
calumniously
represents that the pursuer
from
mercenary motives entered into a plot or
dishonest
arrangement
with
the Socialist speaker therein referred to, under
which
he
was
to sacrifice
for
the time being his political principles in order that an audience of sufficient size might be secured by a
combination
of the two meetings that had
collected
to listen, on the one hand to Socialistic views, and on the other to the exposition of
Conservative
principles, on the
footing
that the proceeds
were
to be equally
divided
between the pursuer and the Socialistic speaker aforesaid, or makes similar
false
and
calumnious
representations of and regarding the pursuer, to his loss, injury, and
damage?
(2)
Whether
the said article or part thereof is of and
concerning
the pursuer, and
falsely
and
calumniously
represents that on the Sunday evening therein referred to the pursuer had obtained liquor in a hotel in
Dundee
by
falsely
and
fraudulently
representing himself to be a bona
![]()
fide
traveller, and had thereby violated the statutes anent the sale of
drink,
or made similar
false
and
calumnious
representations of and
concerning
the pursuer, to his loss, injury, and
damage?
(3)
Whether
the said article or part thereof is of and
concerning
the pursuer, and
falsely
and
calumniously
represents that he, on the Sunday evening referred to,
drank
alcoholic liquors to such excess as to produce intoxication, or makes similar
false
and
calumnious
representations of and
concerning
the pursuer, to his loss, injury, and
damage?
(4)
Whether
the said article or part thereof is of and
concerning
the pursuer, and
falsely
and
calumniously
represents that the pursuer, being liable as tenant or otherwise to pay the rent of the hall used
for
said meeting on the Sunday evening referred to, had secretly left
Dundee
![]()
without
leaving any address, and
without
making provision
for
![]()
payment of said rent,
for
the purpose of
defrauding
the proprietor of the hall of his just
claims
![]()
for
same, or makes similar
false
and
calumnious
representations of and
concerning
the pursuer, to his loss, injury, and
damage?
![]()
Damages
laid at £500.”
On 19th June the Lord Ordinary ( Kyllachy) approved of these issues and appointed them to be the issues
for
the trial of the
cause.
![]()
The
defenders
reclaimed, and argued—A
charge
of insincerity made against a man acting in a public
capacity
![]()
was
no ground
for
an action— Onslow v. Horne, 1771, 2 Sir
William
Blackstone, 750.
Further,
the article
did
not naturally bear the
construction
sought to be put upon it by the pursuer in the
first
issue. The same remark applied to the second and third issues. The latter issue
fell
to be
disallowed,
on the
further
ground that it
was
not slanderous to accuse a man of having once got
drunk,
there being no imputation of habitual intemperance. The
fourth
issue must also be
disallowed.
The article
was
![]()
clearly
meant to be a joke
from
beginning to end, and the last paragraph
was
merely a
clumsy
jest at the pursuers expense, and
could
not be taken to
convey
a serious imputation on the honesty of the pursuer.
Argued
for
the pursuer—The pursuer
was
entitled to the
first
issue, as the article
clearly
![]()
charged
him
with
sacrificing his political principles on base and sordid motives— Seymour v. Butterworth, 1862, 3
F.
&
F.
372; Campbell v Spottiswoode, 1863, 3
F.
&
F.
421.
At advising—
first
issue puts the question
whether
the
words
used in the alleged libel represent “that the pursuer
from
mercenary motives entered into a plot or
dishonest
arrangement
with
the Socialist speaker therein referred to, under
which
he
was
to sacrifice
for
the time being his political principles in order that an audience of sufficient size might be secured by a
combination
of the two meetings that had
collected
to listen, on the one hand to Socialist views, and on the other to the exposition of
Conservative
principles, on the
footing
that the proceeds
were
to be equally
divided.”
I must say that I have the greatest
difficulty
in extracting
from
this very
curiously-expressed
newspaper article anything so serious as therein imputed—a
dishonest
arrangement entered into
from
mercenary motives by
which
the pursuer
was
to sacrifice his political principles in order to get up a sufficiently large meeting to make the assemblage pay. There is nothing of that kind there.
What
I understand the article to mean is that there
were
two meetings
called
for
the same evening, one in the interests of
Conservative
principles, and the other
for
the promotion of Socialist views, and a
combination
of these two meetings is said to have taken place. All that is undoubtedly set out, but in
what
way
the two
were
to be
combined
for
the purpose of producing revenue, I
do
not understand. How any pecuniary advantage
was
to be gained by it is not
very
clear.
It is said that the audience,
consisting
partly of extremists on the one side, and partly of extremists on the other side of politics,
were
to
combine
to pay the two gentlemen
who
were
sacrificing their political principles
for
the purpose of gathering a
crowd.
That is unintelligible. I think that the true and obvious meaning of the article is that the parties, not expecting very
full
audiences in either one of these meetings or in the other, thought it better, instead of having a separate exposition of their various political views, to have a “logomachay” or “
flyting,”
as they
called
it in Scotland in old
days,
or, in more modern language, a
debate.
That is
what
the article suggests to my mind, and I think that it is the
fair
construction
of it. If that be so, I
do
not think
we
can
allow this ingenious innuendo proposed by the pursuer to be put into the issue,
for
that is really to give to the
words
used in the article a perfectly strained and
fanciful
meaning. I am, therefore,
for
disallowing
the
first
issue.
As regards the second, the question put is
Page: 868↓
The third issue is even more preposterous. It represents the article as meaning that upon the Sunday evening in question the pursuer drank
alcoholic liquors to such excess as to produce intoxication, or made similar
false
and
calumnious
representations of and
concerning
the pursuer. Now, I
cannot
say that in
what
remains of this article there is any
charge
of that at all. It is said that “
dodging
round the rear of a passing vehicle they passed”—that is the pursuer and his two
companions—“unobserved,
as they supposed, through the portals of a
certain
hotel,
where
they
drank
their own good healths and the very good health of each member of their late audience separately.” These are the
whole
words
founded
on as the
foundation
of the
charge
in the article. The
word
“intoxication” is
certainly
not there, and there is nothing beyond a mere suggestion that liquor had been used. There is nothing beyond that in the article, and to say that it means that they
drank
alcoholic liquors to such excess as to produce intoxication is a mere misrepresentation of the
words
used. It is not a
fair
and not an admissible
construction
of the
words,
therefore I am against granting that issue also.
But when
we
come
to the
fourth
issue there is a more intelligible
case
for
the pursuer, because there is, I think, in the very
close
of the article a statement
which
is upon the
face
of it slanderous, and
which
does
not require much in the
way
of innuendo. The
words
used are—“And now one of them has left the town. Any information as to his
whereabouts
will
be thankfully received by a sorrowing landlord, the proprietor of the hall,
who
now
concludes
that a Tory
Cleon
is no more profitable as a tenant than a Socialist Boanerges.” I
certainly
think the
fair
meaning of that is to
charge
the pursuer
with
failing
to pay the rent
for
this hall
which
he had undertaken to pay, and
with
leaving the town to avoid making payment of his just
debts
and leaving no address behind him, but on the
contrary
going away under such
circumstances
that nobody
could
communicate
with
him. That
certainly
is slanderous, and I think the innuendo
which
is put upon these
words
in the
fourth
issue is quite admissible. I think I should be very much
disposed
to allow that issue as it stands, but I
would
suggest that it probably might be
desirable,
in order to show
what
particular part of this long article is really to be submitted to the jury as
containing
words
imputing such a
dishonest
purpose to the pursuer, that the
words
in question should be set out in the issue and then the innuendo
contained
in it should
follow.
I
do
not mean by that to say that it may not be open to the pursuer at the trial to read any other part of the article
which
is necessary to give
colour
or interpretation to the
words
complained
of, or that the attention of the jury is to be
confined
at the trial to the single
words
which
are set out in the issue. But I think that the jury should know
what
particular part of the article it is that is said to
contain
the libellous statement in question.
course
it is
for
the jury to say
whether
the article
complained
of as being
false
and
calumnious
is so. But, upon the other hand, it is the
function
of the
Court,
I think, to interfere to prevent the pursuer in an action of this kind putting any innuendo he
chooses
upon the language alleged to have been used, or libel alleged to have been uttered, and
with
such innuendo taking his
chance
of obtaining a verdict
from
the jury. I think the
Court
has settled a
wise
course,
that they
will
look at the article and the innuendo
for
the purpose of saying
whether
the language used
will
reasonably bear the
construction
that is put upon it in the innuendo. If it
will
reasonably bear that
construction,
then the issue is allowed, and it is
for
the jury to say
whether
it
does
in
fact
bear that
construction.
But if it
will
not in the view of the
Court
reasonably bear the
construction
Page: 869↓
Taking the last issue first,
as the issue
which
the
Court
is now to grant, I am of opinion, not that the article necessarily bears the meaning
which
the pursuer puts upon it, but
certainly
that it may reasonably bear that
construction,
and that it is a question
for
the jury to say
whether
that
was
not its real meaning. As your Lordship has suggested, it may be
well
to put the passage more immediately
complained
of in the
forefront
of the issue. I have no
doubt
the pursuer
will
be entitled to put the article as a
whole
before the jury in order to show the spirit of the article, and to ask them
whether
the passage
with
which
it
concludes
does
not insinuate,
with
reference to the spirit of the
whole
article, that the pursuer had left the town after he had incurred
debt
without
leaving his address, and
with
the view of
defrauding
the landlord of the hall of his rent.
In regard to the other issues asked for,
I
concur
with
your Lordship in thinking the article
will
not bear the innuendoes
which
are put upon it in the
first
three issues. As to the article itself, it appears to me that the author of it probably sat
down
and attempted to
write
what
he thought
was
a
clever
and popular production, but the result of his labours
was
that he produced a very
foolish
and stupid article, and an article most vulgar in its style. I may say that I think a very great part of it is utterly unintelligible, but still I
do
not think that it
will
bear the innuendoes proposed by the pursuer in these three issues. In regard to the
first
of these issues, its matter relates to the political principles of the pursuer, and
certainly
in these
days
people are allowed, I think, to speak pretty
freely
upon political principles. In the
discussion
of these principles I think there is nothing more
common
than to say of any man in public that they have sunk or sacrificed their political principles on behalf of their
friends
or on behalf of the political party to
whom
they have become attached, or, it may be, to secure some personal advantage. I am not prepared to say at this moment that it
would
be, as matters exist now, a ground of action
for
defamation
and
damages
to say that a man had sunk or sacrificed
for
the time his political principles in order to secure a personal advantage, even if it
were
made quite
clear
that this
was
the meaning of the article. But it is not necessary to
decide
that question, because the article, I think,
will
not bear the innuendo that the pursuer has given to it.
Without
going into its terms more
fully
than your Lordship has
done,
I have
come
to the
conclusion
that, upon any
fair
reading, the
construction
which
the pursuer proposes to put upon it is an extravagant
construction.
As to the second issue, viz., that there is here a representation of the violation of
what
has been
called
the
Forbes
Mackenzie Act—a violation of the statutes relating to the obtaining of liquor upon Sunday—I
cannot
see anything that
would
warrant
the
Court
in granting that issue. I
can
find
nothing in the article
containing
a representation that the pursuer had violated the licensing laws; and as to the
conclusion
that there is here a
charge
of
drunkenness
against the parties referred to, I have simply to say that it is utterly extravagant to ground that
conclusion
on the
fact
that the
writer
says that the persons retired and
drank
the healths of the audience after the meeting. No
doubt
in saying that they
drank
their healths separately the article indicates that they
drank
a great many healths. But to suggest that the article
contains
a
charge
of
drunkenness
is simply out of the question. It is abstracting a meaning
from
this article
which
it
will
not bear. I think nowadays there is a great
desire
to go to
Court
with
actions of
damages—in
many
cases
where
there is really no ground
for
them—and
we
must put a stop to that, except in
cases
where
there is a good ground of
complaint;
and, therefore, upon these grounds I
concur
with
your Lordship in refusing the
first
three issues, and allowing the
fourth.
considering
such
cases
as these actions of
damages
brought against newspapers by public speakers
for
defamation
it is to be remembered that it is the privilege of every
citizen
to
comment
freely,
and to express his opinion
freely,
regarding the public acts or public utterances of his
fellow
citizens.
It is said sometimes that one
who
takes part in public affairs invites such
criticism,
and that is true, and anyone is entitled to use the privilege
which
the law allows him. It
will
not make
criticism
actionable that it is uncourteous, expressed in
words
which
good taste
condemns,
or even that it is offensive and vituperative, provided the meaning of the article be nothing more than
criticism
of public acts or public speech. I think that principle is very
well
illustrated by the
case
in Sir
William
Blackstone's reports that
was
cited
to us,
where
it
was
held that to accuse a member of Parliament of insincerity in his public
conduct
was
not actionable. It may be that
cases
that might have been thrown out on this ground have been sent to trial. That has been sometimes the
case,
because the
defender
preferred to go to a jury rather than to stop the action at an earlier stage in the exercise of his legal right. But so
far
as I know there has been no
deliverance
by a
court
of appeal in this
country
contrary
to the principle laid
down
in that old
case.
And
when
we
remember that the language of spoken and
written
criticism
in early times
was
even much stronger and more offensive than the present time
will
allow, it is quite
certain
that if it had been
within
the powers of the persons attacked to bring such actions they
would
have been brought. In
considering
whether
the article
complained
of here is liable to the protection indicated, I think the
first
question
for
consideration
is—
What
is the general scope of
Page: 870↓
was
absent.
The Court
recalled the interlocutor of the Lord Ordinary, and appointed the
following
issue to be the issue
for
the trial of the
cause:—“It
being admitted that on or about 19th April 1890 the
defenders
printed and published in the
Dundee
Weekly
News of that
date
the article
contained
in the schedule hereunto annexed—
Whether
the
following
words
in said article, viz., ‘Now, one of them has “left the town.” Any information as to his
whereabouts
will
be thankfully received by a sorrowing landlord, the proprietor of the hall,
who
now
concludes
that a Tory
Cleon
is no more profitable as a tenant than a Socialist Boanerges’—are of and
concerning
the pursuer, and
falsely
and
calumniously
represents that the pursuer, being liable as tenant or otherwise to pay the rent of the hall used
for
said meeting on the Sunday evening referred to, had secretly left
Dundee
without
leaving any address, and
without
making provision
for
payment of said rent,
for
the purpose of
defrauding
the proprietor of the hall of his just
claims
for
same, or makes similar
false
and
calumnious
representations of and
concerning
the pursuer, to his loss, injury, and
damage?”
Counsel
for
the Pursuer—
Salvesen—
Younger. Agents—
Sturrock & Graham,
W.S.
Counsel
for
the
Defenders—
Guthrie—
Law. Agent—
John Rhind, S.S.
C.