Supreme Court of Canada
The Manitoba Free Press Company v. Martin., (1892) 21 SCR
518
Date: 1892-12-13
The Manitoba Free Press Company (Defendants)
Appellants
And
Joseph Martin (Plaintiff)
Respondent.
1892: Oct 21; 1892: Dec 13.
Present:—Strong, Fournier, Taschereau, Gwynne and Patterson
JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, MANITOBA.
Libel—Personal attack on Attorney-General—Pleading—Rejection
of evidence—Fair comment—General verdict—New trial.
In an action for a libel
contained in a newspaper article respecting certain legislation the innuendo
alleged by the plaintiff, the attorney-general of the province when such
legislation was enacted, was that the article charged him with personal
dishonesty. Defendants pleaded “not guilty,” and that the article was a fair
comment on a public matter. On the trial the defendants put in evidence,
plaintiff’s council objecting, to prove the charge of personal dishonesty, and
evidence in rebuttal was tendered by plaintiff and rejected. Certain questions
were put to the jury requiring them to find whether or not the words bore the
construction claimed by the innuendo or were fair comment on the subject matter
of the article; the jury found generally for the defendants and in answer to
the trial judge who asked if they found that the publication bore the meaning
ascribed to it by the plaintiff, the foreman said: “We did not consider that at
all.” On appeal from an order for a new trial:
Held, that defendants not
having pleaded the truth of the charge in justification the evidence given to
establish it should not have been received, but it having been received
evidence in rebuttal was improperly rejected; the general finding for the
defendants was not sufficient in view of the fact that the jury stated that
they had not considered the material question, namely, the charge of personal
dishonesty. For these reasons a new trial was properly granted.
APPEAL from the decision of the Court of Queen’s Bench, Man., setting aside a
verdict for the defendants and ordering a new trial.
[Page 519]
The action against the defendant company was for an alleged
libel in a newspaper owned and published by them against the plaintiff, then
attorney-general of the province as well as railway commissioner, charging him
with malfeasance of office in connection with the construction of the Northern
and Manitoba Railway. The defendants pleaded not guilty and that the alleged
libellous publication was a fair comment on a matter of public interest. On the
trial certain questions were submitted to the jury who returned a verdict of
not guilty, and on being asked by the trial judge as to their finding on the
question as to whether or not the publication bore the meaning ascribed to it
by the plaintiff, the foreman replied:
“We did not consider that at all We found the article
complained of was a fair comment on a matter of public interest, but the jury
while giving the verdict desire to state that it would have been better if more
temperate language had been used.”
On appeal to the full court the verdict was set aside and a
new trial ordered, the majority of the court being of opinion that the answer
of the foreman meant that the jury had not considered the case as submitted.
The defendants appealed.
Haegel Q.C. for the appellant. The whole matter was
tried out and nothing can be gained by a new trial. See Merivale v. Carson. The publication
was not libellous. Campbell v. Spottiswood Odger v. Mortimer.
Ewart Q.C. for the respondent. An appellate court will
not interfere with an order for a new trial on the ground that the verdict was
against the weight of evidence. Toulmin v. Hedley.
[Page 520]
Even under the recent statute, granting a new trial will be
regarded as a matter of discretion in the court appealed from. See Barrington
v. The Scottish Union;
Accident Ins. Co. v. McLachlan;
Moore v. The Connecticut Mutual Ins. Co..
Though having jurisdiction since the statute of 1891 the court
will refuse to interfere in such a case. Scott v. The Bank of New
Brunswick.
STRONG, FOURNIER and TASCHEREAU JJ. concurred in the judgment
of Mr. Justice Patterson.
GWYNNE J.—This appeal, for which as we read the case as
presented upon the appeal books there does not seem to be any substantial
foundation, must be dismissed with costs, and the new trial had as directed by
the order of the court below.
PATTERSON J.—This is an action for libel. The respondent is
plaintiff in the action and complains of the publication, in a newspaper
published by the appellants, of the words:
Another disgraceful piece of business, which has never been
explained, was the celebrated $500 per mile charge, which, had it not been for
the watchfulness of the “ Free Press,” would have put $90,000 in the promoters’
pockets, and everybody knows that the Attorney General (meaning the plaintiff)
was the principal promoter.
Innuendo,
that the plaintiff, as a member of the executive council of
the province of Manitoba, took part in the negotiation of a contract between
Her Majesty the Queen and certain persons who afterwards became incorporated as
the Northern Pacific and Manitoba Railway Company, and that at the instance and
connivance of the plaintiff provision was made in the contract arising from
such negotiations whereby a large sum of money should be raised by the said
company, a portion of which was to be dishonestly and corruptly received by the
plaintiff for his own use and benefit to the great detriment of this province.
[Page 521]
There is no doubt that these words are capable of a meaning
defamatory to the plaintiff who is charged as being the principal promoter of
some scheme or project which would have put $90,000 into the pockets of the
promoters but for the watchfulness of the newspaper.
The pleas are first, not guilty; secondly,
That before and at the time of the alleged publication of the
alleged libel great public interest was felt in the province of Manitoba in
reference to the negotiation and making of the contract in the declaration
referred to, and the subject was much discussed in the said province, both in
the public newspapers and otherwise, and the words complained of were and are
part of an editorial article referring to said matter, and the defendants being
the proprietors of a public newspaper published the words complained of,
together with the whole of said editorial article, which is the publication
complained of; and the words complained of were fair comment on the said
matters of great public interest in the said province, and were published by
the defendants bonâ fide for the benefit of the public and without any
malice toward the plaintiff.
There is a large mass of evidence which does not, except to a
very small extent, bear on the matter now before us. It appears that in 1888
negotiations were going on between the government of Manitoba, generally
represented by the plaintiff who was attorney-general of the province and
railway commissioner, and certain contractors, respecting the construction of a
railway. There is abundant evidence that great public interest was taken in
that negotiation.
On the third of August, 1888, the “Free Press” published a
memorandum of agreement made, under date 26th of July, 1888, between the
plaintiff as railway commissioner and three persons designated contractors. By
that instrument the contracting parties mutually agreed to endeavour to procure
from the Manitoba legislature a charter incorporating a company to be called
The Northern Pacific and Manitoba Railway Company, and within ten days after
the incorporation of the company to execute a contract for the construction
[Page 522]
of the railway, a draft of which was annexed to the memorandum
of agreement and was also published in the “Free Press” along with the
memorandum.
The draft contract provided for the delivery by the
commissioners to the company of guaranteed bonds and unguaranteed bonds, to
amounts computed, with reference to the work done, according to a defined
scale. In connection with this we learn what it is that the libel alludes to as
“the celebrated $500 a mile charge.” It appears from the following extract from
clause 11, of the draft contract:
The effect of this is intended to be that where the
construction and equipment of the said line costs less than $16,000 per mile,
the commissioner will retain in his hands, in unguaranteed bonds, the difference
between the cost as aforesaid and $16,000 per mile, and when the line costs
more than $16,000 per mile the commissioner will deliver to the company the
overplus of the cost above $16,000 in accumulated unguaranted bonds in the
hands of the commissioner. In calculating the amount of work done for the
purpose of delivering to the company the amount of unguaranteed bonds the
commissioner agrees to add the sum of $500 per mile to the actual cost of
construction and equipment.
That draft contract was executed, but after the incorporation
of the company,
a fresh contract was prepared and was executed by the plaintiff as railway
commissioner, and by the Northern Pacific and Manitoba Rail’ way Company. It
bore date the 29th December, 1888, but had before that date been approved and
ratified by the legislature of Manitoba by an act that was assented to on the
4th of September, 1888,
the contract forming schedule A to that act. As thus approved and executed the
contract contained a $500 per mile clause in these terms:
It is farther agreed that in calculating the amount expended
on the said lines from Winnipeg to Portage la Prairie, and from Morris to
Brandon, the sum of five hundred dollars per mile shall be allowed
[Page 523]
for cost of organizing, preparing and printing bonds and
coupons and legal expenses in connection with such organization and preparation
of bonds, etc.
But by another provincial act passed on the fifth of March,
1889, the money
arrangements of the contract were put on a different basis; six clauses of the
contract, including that in which the $500 per mile was provided for, were
abrogated, and others were substituted for them. All this provincial
legislation was confirmed by an act of the Parliament of Canada passed on the
16th of April, 1889.
The article containing the words charged to be libellous seems
to have originally appealed in a paper called the Morden “Monitor,” and it was
copied, with words of approval, in the “ Free Press ” of the 18th of September,
1890 It referred, in a tone of hostile criticism, to several matters connected
with the railway arrangements of the provincial government. The passage
touching the $500 per mile clause is as follows:
Another disgraceful piece of business, which has never yet
been explained, was the celebrated $500 per mile charge, which, had it not been
for the watchfulness of the “Free Press,” would have put $90,000 into the
promoter’s pockets, and everybody knows that the attorney-general was the
principal promoter. By the prompt exposure of this transaction on the part of
men who had just been returned to power for their devout pledges to secure
honest government for the people, the “Free Press” compelled the government to
hastily drop this palpable attempt at jobbery as though it were a hot cinder,
and a second bargain was entered into, but with as much despotic secrecy as
ever.
As far as this passage is properly comment or criticism it is,
no doubt, capable of justification as being not so unfair as to amount to an
actionable libel. The imputation of dishonesty in framing the contract so as to
put unearned money into the pockets of “ the promoters,” whatever that term is
here intended to mean, may have been undeserved, but, judging merely from
[Page 524]
the documents, the inference was one for which there was room.
The plaintiff does not complain on that score, nor could “ the promoters”
whoever they are supposed to be. The complaint is that the plaintiff personally
is charged with framing the contract so as dishonestly to put money into his
own pocket. That is the meaning of the statement that he is the principal
promoter, and the personal charge is an allegation of fact and not a comment on
admitted facts.
The new fact so asserted may itself happen to be the subject
of comment, as was the case in Davis v. Shepstone, where a
newspaper charged certain acts against the British Resident Commissioner in
Zululand and commented severely upon the acts assumed to have been done. It has
been so here, for whatever is said of “the promoters” is said of the plaintiff’.
But, as remarked by Lord Herschell in delivering the judgment of the Judicial
Committee in the Zululand case:
The distinction cannot be too clearly borne in mind between
comment or criticism and allegations of fact, such as that disgraceful acts
have been committed or discreditable language used. It is one thing to comment
upon or to criticise, even with severity, the acknowledged or proved acts of a
public man, and quite another to assert that he has been guilty of particular
acts of misconduct.
This general doctrine was evidently well understood and was
present to the mind of the learned judge who tried this action, and I find no
trace in the report of the trial of any suggestion that the alleged fact of the
plaintiff’s complicity in the’ asserted fraud could be regarded as a known or
admitted fact.
On the part of the defence evidence was offered in proof of
the alleged fact, and what took place in connection with that evidence gave
rise to some of the questions which we have to discuss.
A general idea of the positions taken may be gained from
reading a page or so from the printed report of the
[Page 525]
trial. There are one or two places where the meaning is
slightly confused, probably from inaccuracy in taking or transcribing the shorthand
notes, or perhaps from some typographical error.
Mr. Howell is counsel for the plaintiff, Mr. Haegel
for the defendants. A witness named Hagarty is under examination on the part of
the defence, and is asked concerning a conversation with the plaintiff:
Q. Relate what that conversation was as regards the $500 a
mile clause ?
Mr. Howell—What issue is this going to meet ?
Mr. Haegel—I submit it is the most material evidence.
His Lordship—For what purpose?
Mr. Haegel—For the purpose of showing there was some
foundation in fact, all the defendant has to show, for the purpose of proving
the plea of bonâ fide comment, not that they are true, it is not
necessary that he should establish that, but it is necessary that he should
establish that he commented on this matter in the public interest, and that
there was some foundation in fact for the statements which he made. Cites Odger
at page 38. I submit if I show that the plaintiff himself has made explanations
of this $500 a mile provision, which admit that it is not a proper and honestly
made provision or which failed to explain and satisfy a reasonable man, but
kept it tainted, that it is evidence under that plea of fair and bonâ fide
comment. Wills v. Garman.
I propose to prove by this witness that certain admissions were made touching
the $500 a mile clause.
Mr. Howell—It seems to me it would have been more manly to
have come here and said you are a thief, and you have said you are a thief. I
will accept the truth of it, that is the going into it if we are allowed to
deny it in rebuttal, but it would have been more manly if you had pleaded it.
His Lordship—It appears to me that there are really two
questions that arise under this language that is charged to the defendant. The
first is whether the language that is used is language that can be construed
fair comment upon the contract of this kind made under the circumstances. The
second is the direct statement that is made in it that the plaintiff was what
was called one of the promoters into whose pockets it appears to be charged
that some of these moneys went; that charge of fact whether he was such or not,
it appears to me the defendant cannot raise without placing it on the record
distinctly.
[Page 526]
They are not entitled to raise it, but they are entitled to go
into anything that shows the nature and effect of this contract for the purpose
of showing whether the language used with regard to it, which, to a certain
extent, is open to the jury to connect with the plaintiff is correct and,
therefore, it appears to me to that extent it may be used, but that the
defendant cannot give any evidence whatever for the purpose of showing that the
plaintiff was one of the promoters, because they have not placed on the record
that he was, and if they are not willing to assert in court that he was, they
are not entitled to have the evidence taken. I think the question in the
present form I have to admit subject to that statement, that evidence bearing
merely upon the question whether the plaintiff was one of the promoters or
rather parties into whose pockets it was charged this money should go, the
defendant is not entitled to give any evidence.
Mr. Howell—There is another reason for its exclusion. How can
his conversation with the plaintiff give Mr. Luxton any right to libel the
plaintiff?
His Lordship—Do you propose to show communication to the
defendant ?
Mr. Haegel—Yes, my Lord.
Mr. Wilson—Prior to the writing of the article ?
Mr. Haegel—I don’t know that I can show that. It is just as
good evidence if the plaintiff never learned it. I can show it if it is pressed
for.
His Lordship—I think I will still allow it, notwithstanding, I
may say, that I am not quite satisfied in my own mind whether it ought to be
allowed, but it must be to show whether the language used was justified with
regard to this contract.
Then when another witness for the defence, one A. F. Martin,
was asked about a discussion that took place at a caucus of the liberal party,
to which the plaintiff belonged, respecting the contract, this is reported to
have occurred:
Q. Did you hear any discussion about the $500 a mile ?՛
A. Yes; there were strong objections against it at the time.
The strongest objections were made by Mr. Isaac Campbell and Mr. Fisher and
Col. McMillan and Mr. Thompson, of Carberry. The strongest objections to it
were by Mr. Campbell and Mr. Fisher.
Mr. Howell—Of course we expect to be able to rebut this
evidence.
Mr. Haegel—My learned friend has no reason to assume that we
are making a bargain.
His Lordship—I can’t undertake anything of the kind, Mr.
Howell.
[Page 527]
Mr. Howell—It is either objectionable or I have the right to
rebut it if it can be received in evidence; or I will make a bargain with my
learned friend to let it go in, we having the power to meet it.
Mr. Haegel—I must object to that.
His Lordship—On what grounds do you want this evidence, Mr.
Haegel ?
Mr. Haegel—On the same ground I put before—that these
statements were made in the presence of the plaintiff, and I propose to prove
what the plaintiff said and did on that occasion in answer to the statements: what
justification he made to the charges.
Mr. Howell—I agree it is evidence on the view the people there
took of it, and if your Lordship can only see your way clear to receive it I
shall be only too glad.
His Lordship—I will allow it to be given on the same principle
as that with regard to the other.
A good deal of evidence was given on the part of the defence
in direct support of the personal charge of corrupt dealing by the plaintiff.
This evidence consisted chiefly, and it may be said altogether, of
conversations with the plaintiff sworn to by Mr. Luxton, the managing director
of the defendant company, and by other witnesses, and amounting, if believed to
have taken place as stated, to express admissions by the plaintiff that the
design of the $500 per mile provision was to provide money for use, either
personally or as members of a political party, by himself and others.
It was evidence that would have been properly receivable upon
a plea justifying the statement complained of as being true, and it was not
properly receivable without such a plea.
If the libel had in direct terms stated, as it did less
directly, that the plaintiff had been guilty of a palpable attempt at jobbery
by framing the contract so as to put money into his own pocket, the only
effective plea to a declaration charging the publication of a libel in those
terms would have been a plea that the asserted fact was true. A plea that the
contract was a matter of public interest and that the libel was a fair comment
[Page 528]
or criticism of it would manifestly have fallen short of
meeting the gravamen of the complaint.
To state facts which are libellous is not comment or criticism
on anything.
Per Field J. in R. V. Flowers.
Such a plea ought to be met by a demurrer as in the Irish case
of Lefroy v. Burnside.
In giving the judgment of the Court of Exchequer in that case, allowing the
demurrer, Palles G.B. said:
That a fair and bonâ fide comment on a matter of public
interest is an excuse for what would be otherwise a defamatory publication is
admitted. The very statement, however, of this rule assumes the matters of fact
commented upon to be somehow or other ascertained. It does not mean that a man
may invent facts, and comment on the facts so invented in what would be a fair
and bonâ fide manner on the supposition that the facts were true.
The conclusion from this statement of doctrine, and from the
allowance of the demurrer to the plea, is that the truth of the allegation of
fact should be pleaded.
The rule is stated in Odger on Libel and Slander, that:
If the comment introduces an independent fact, or
substantially aggravates the main imputation, it must be expressly justified.
Thus the libellous heading of a newspaper article must be justified as well as
the facts stated in the article.
The authorities cited for this are Lewis v. Clement, where the report
of proceedings in a court of justice would probably have been held to give no
right of actions, but for the heading “ shameful conduct of an attorney,” and a
somewhat similar case of Bishop v. Latimer, where the
heading was “How Lawyer Bishop treats his clients.”
In another part of the same treatise the case of Mountney
v. Watton,
is cited, in which case the
[Page 529]
libel was contained in a newspaper paragraph headed “ horse
stealer.” The innuendo was that it was intended to charge the plaintiff with
felony. The plea which justified all the statements except the heading in which
the imputation of felony was implied was held bad on demurrer.
Were such a justification formally pleaded the plaintiff would
of course be entitled to give evidence in answer to that given by the
defendant, who would, in his turn, be entitled to call witnesses in rebuttal.
The assumption on the part of these defendants was that, as
put by their counsel according to the report from which I have, read an
extract, in order to maintain that the publication was a fair comment on the
matter of public interest it was not necessary to establish the truth of their
allegation of fact, but only to show that there was some foundation in fact for
it.
I do not profess to see the distinction between a statement
being true and its having a foundation in fact, but I do not find any authority
for the contention that imputations of personal misconduct can be excused by
anything short of proof that they are well founded in fact. The passage in Mr.
Odger’s work to which counsel is said to have referred in support of his
proposition is, I imagine, the following:
It will be no defence that the writer, at the time he wrote,
honestly believed in the truth of the charges he was making, if such charges be
made recklessly, unreasonably and without any foundation in fact.
The authority cited being Campbell v. Spottiswoode . What was
discussed in Campbell v. Spottiswoode was the imputation of motives, not
statements of fact. Cockburn C.J. said:
I think the fair position in which the law may be settled is
this: That when the public conduct of a public man is open to animadversion
[Page 530]
and the writer who is commenting upon it makes imputations on
his motives which arise fairly and legitimately out of his conduct, so that a
jury shall say that the criticism was not only honest but also well founded, an
action is not maintainable. But it is not because a public writer fancies that
the conduct of a public man is open to the suspicion of dishonesty he is,
therefore, justified in assailing his character as dishonest.
There is nothing in that decision to favour the assumption on which
the evidence was offered. The conduct of a public man which may be commented
on, and from which inferences unfavourable to his character may be fairly
deduced, must be something known or admitted or proved, not conduct which the
writer chooses to ascribe to him.
The case of Lefroy v. Burnside was also relied
on, or rather an Ontario case of Wills v. Carman in which, in
refusing the plaintiff’s motion for a new trial, the case of Lefroy v. Burnside
was referred to by the court. In Wills v. Carman the pleas were
not guilty and “ fair comment,” and there was no express justification of
defamatory statements which I suppose were statements of fact, though the
report does not make that clear. The Chief Justice said:
The defendant did not justify, nor did he seek to justify, the
alleged defamatory matter published as being true, but he alleged that it was a
fair comment upon matters of public and general interest, and he was entitled
to show that the matters on which he commented were true and without so doing
it is clear that he could not have established his plea of fair comment.
I entirely agree with this last statement; but I do not hold
that without a plea of the truth of defamatory allegations of fact a defendant
can insist on giving evidence of their truth, nor do I consider that a contrary
opinion is necessarily involved in the refusal of a new trial where the
evidence may have been given and the question pronounced upon by the jury
though not formally raised upon the record.
[Page 531]
I may read a few words more from Palles C. B. in Lefroy’s
case. They immediately follow those already quoted:
Setting apart all questions of forms
he says—meaning, as I understand, without strict regard to the
precise issues joined upon the record—
the questions which would be raised at a trial by such a
defence must necessarily be—first the existence of a certain state of facts; secondly,
whether the publication sought to be excused is a fair and bonâ fide
comment upon such existing facts. If the facts as a comment upon which the
publication is sought to be excused do not exist the foundation of the plea
fails.
I may quote also from the Chief Baron’s reference to the facts
alleged in the plea before him which, mutatis mutandis, is not
inapposite to the plea before us.
The imputation to be justified is that the plaintiff
dishonestly or corruptly supplied to a newspaper information acquired by him as
manager of the Queen’s Printing Office. Leaving out the qualifications of “dishonesty
” or “corruptly,” as clearly comment, the allegation of fact to be excused is
that he did supply it. There is an allegation of the defendant’s belief that
the information could only have been procured from the Queen’s Printing Office,
but there is not even an allegation of fact (as distinguished from belief) that
the information could only have been so procured.
The evidence given on the р art of the defendants being
given for the purpose of proving, and being fitted to prove, the defamatory
statements on which the action was founded was, in my opinion, improperly
admitted; but having been insisted on by the defendants and admitted at their
instance, just as it would have been if they had regularly pleaded their
justification, it was not open to them to object to its being met by counter evidence
on the part of the plaintiff, not only to contradict the witnesses who swore to
admissions, but to disprove the charges. The question was not whether certain
admissions had been made, but
[Page 532]
whether the plaintiff was guilty of what was charged against
him, and the alleged admissions were merely evidence on that issue.
Owing to some misapprehension of the rights of the plaintiff
in this respect his evidence was rejected. A witness named McNaught who had
acted in the negotiations for the contractors or the company was called by the
plaintiff, and in reply to the defendants’ evidence, and after he had, under
the ruling of the judge, been allowed to speak in contradiction of the
defendants’ evidence touching the conversations with the plaintiff, he was
asked some questions on the substantial question of fact. I read from the
notes. Mr. Culver here appears with Mr. Haegel as counsel for the defendants.
Q. What was the object of putting that $500 a mile in the
contract ?
Mr. Culver—That clearly was matter in chief, and is not
rebuttal.
Mr. Haegel—And the object is not an answer; the only question
is, what did the object seem from the surrounding circumstances? The object
might have been pure, but it might have seemed bad from the surrounding
circumstances, and it is pertinent to the issue.
Mr. Howell—They suggested or endeavoured to show all sorts of
schemes and frauds, and I ask him what was the object of putting that in. Was
it a base object or otherwise ?
His Lordship—I
don’t think you can go into that question at all now.
Q. Was that clause as to $500 a mile put in for the benefit of
any other person than the Northern Pacific Railway Company ? Mr. Haegel
objected to this. His Lordship—I can’t allow it.
Q. Was there any fraudulent design of any kind in putting in
that clause ?
Objected to.
His Lordship—I can’t allow it.
Q. Was there any intention that Mr. Martin or any member of
the local government should take any benefit of any kind whatever out of that
$500 a mile?
Objected to and ruled out.
The same course was pursued with Mr. Kendrick another witness
and with the plaintiff himself.
[Page 533]
The evidence ought, under the circumstances, to have been
received.
The case presents this dilemma:
The defendants’ evidence ought not to have been admitted, or
the plaintiff’s counter evidence ought to have been admitted.
On this ground alone I should decline to interfere with the
order for a new trial, but there are other grounds equally fatal to the appeal.
After a very full and careful charge to the jury the learned
judge asked them to answer three questions:
1st. Are these words defamatory in themselves within the
definition I have given you ?
2nd. Do they bear the construction that the plaintiff in this
case in the innuendo annexed to the declaration says they bear ?
3rd. In either sense are they fair comment upon this question
upon which they are said to be comment ?
Counsel for the plaintiff made some objections to the charge,
one of which is thus noted.:
Further, in any event, Your Lordship should have told the jury
that there should be a verdict for the plaintiff unless they found that there
was a foundation in fact for the charge, and secondly, that there was a bonâ
fide belief in the truth of the charge.
Then the report proceeds:
The jury having come into court the foreman (F. W. Stobart)
announced that they found for the defendant.
Mr. Howell asked if the questions were answered.
His Lordship to the jury—Have you anything to say as to any of
the questions? Do you find whether the publication has the meaning ascribed by
the plaintiff ? Mr. Stobart (foreman). We did not consider that at all. We
found the article complained of was a fair comment on a matter of public
interest, but the jury while giving the verdict desire to state that it would
have been better if more temperate language had been used.
It is impossible to hold that the court improperly exercised
its discretion in sending the case to another
No doubt a jury may lawfully decline, in ,a libel case, to
give any verdict except a general verdict. If
[Page 534]
that, right had been insisted on here, and a general verdict
for the defendants given without explanation, the plaintiff might have been
driven to rely on his objections to the judge’s charge and to the reception or
rejection of evidence, or upon the verdict being against the weight of
evidence. With the explanation given it is evident that the most material
inquiry received no attention from the jury. The meaning ascribed to the
publication by the plaintiff, in other words the innuendo that a corrupt act
was charged against the plaintiff personally, the jury say they did not
consider at all. They found that the article complained of was a fair comment
on a matter of public interest, and so they may well have found if they
separated from it the allegation that touched the plaintiff personally, and
which, as expressed by Lord Field in R. V. Flowers, was not comment
or criticism on anything, or at least might properly have been held so if the
jury had considered that point.
The ground of misdirection or non-direction, indicated by the
objection to the charge which I have noted, is involved with the question of
the improper’ reception or rejection of evidence and need not now be further
considered.
On the whole the case is clearly one in which the order for a
new trial cannot be said to be improper.
I ought not to omit to refer to the very important case of The
Capital and Counties Bank v. Henty
in the House of Lords, and to the discussion by Lords Selborne, Penzance,
Blackburn and Bramwell of the respective duties of the court and the jury in
actions of libel, and particularly to what is said by those learned lords, as
well as in the cases referred to by them, as to the duty of the jury to say
whether the publication has the meaning ascribed to it in the
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innuendo, the duty which the jury in this case declared they
did not perform. I refer to the case without attempting an analysis of the
judgments delivered. To do that would be to write an essay of some length.
I shall merely quote from the remarks of Lord Selborne the
words:
The Court of Appeal has thought that there was no evidence to
go to the jury, and I must be satisfied that their judgment was wrong before I
can say that it ought to be reversed.
The present case is one for the application of that useful
principle.
In my opinion we should dismiss the appeal.
Appeal dismissed with costs.
Solicitors for appellants: Haegel & Bonnar.
Solicitors for respondent: Ewart, Fisher & Wilson.
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