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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Bride v. Williams and Dalzell [1868] ScotLR 6_273 (28 January 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0273.html
Cite as: [1868] ScotLR 6_273, [1868] SLR 6_273
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SCOTTISH_SLR_Court_of_Session
Page: 273↓
Court of Session Inner House First Division.
v.
Facts:
In an action of damages for slander, the pursuer alleged malice on record. The defender pleaded privilege, but his privilege not being apparent on the pursuer's case, an issue, without malice, was sent to the jury. In the course of the pursuer's proof, the defender's privilege was instructed. Meld that the pursuer was entitled forthwith to lead proof of malice in answer to the defender's plea of privilege, although the issue, being framed on the footing that there was no privilege, did not contain malice.
New trial granted, the verdict being against evidence.
This was an action of damages at the instance of John Adam M'Bride, Ph.D. and Veterinary Surgeon, against William Williams, Veterinary Surgeon, Principal of the Edinburgh Veterinary College, and Allen Dalzell, M.D., Professor of Chemistry and Materia Medica in the College.
In September 1867 the pursuer was appointed by the Highland and Agricultural Society Professor of Cattle Pathology in the Veterinary College. In March 1868 the defenders sent to the pursuer a letter in the following terms:—
“ Edinburgh Veterinary College, March 1868.—Dear Sir,—We have done all in our power, by careful inquiry impartially conducted, to arrive at the cause of the unseemly occurrences which have taken place in your class, one of them no later than Wednesday last. We have no desire to hurt your feelings, much less to urge against you any wilful omission of duty, but we feel satisfied that you have failed to preserve that order in your class which is necessary for teaching it; and we need scarcely remind you that the occurrences we allude to, though happening only during your lectures, have a very bad effect on the general credit of this college. We are sorry that your position, in terms of the will of the late Professor Dick, makes it impossible for us to recognise you as a Professor of the College, and receive you as a member of its deliberative council; but this ought to have made you all the more anxious to call in our assistance in checking the first outbreaks of insubordination.
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Instead of reporting to us, you have allowed matters to go on, threatening the unruly, without carrying your threats into execution. We are certain that this college will suffer if you continue in your present position; and, with sincere regret, we are compelled to suggest to you the propriety of relinquishing a position which seems to us not accordant to the will of the founder of this institution; and, taken in connection with what has occurred in your class, is in our estimation, a position which you may not creditably to yourself continue to hold. We consider it our duty to forward a copy of this letter to Mr Fletcher Menzies. We remain, dear Sir, yours truly. Signed, in name of the Veterinary College Council, unanimously agreed, W. Williams, Principal.” A copy of this letter was sent by the defenders to the Highland and Agricultural Society.
In June 1868 the pursuer received from the Secretary of the Highland and Agricultural Society a letter intimating that his services would not be required after 19th September following.
The pursuer alleged—“The statement as regards the unanimous agreement of the members of the said college, as well as the statements which the said letter contained of and concerning the pursuer, so made and communicated by the defenders, were false and calumnious, and made by them maliciously and without probable cause. By and through these statements by the defenders, the pursuer has been dismissed from the said chair, and he has been injured in his character, feelings, and prospects. The damages thus caused to the pursuer by the defenders, he cannot estimate at less than £5000 sterling. The defenders refuse all reparation, and hence the present action has become necessary.”
The pursuer pleaded—“The defenders having made the false statements as regards the unanimous agreement of the members of the Edinburgh Veterinary College, as well as the false and calumnious statements of and concerning the pursuer above condescended on, maliciously, and without probable cause, and the pursuer having been injured thereby, are liable to the pursuer in reparation, as concluded for.”
The defenders alleged that “In writing and pending the said letter, and copy thereof, the defenders did not act maliciously, or without probable cause. On the contrary, in writing and sending to the pursuer the letter libelled on, and in sending the copy thereof to the Secretary of the Highland Society, the defenders acted in bona fide, and reasonably in the discharge of their duty; and they had reasonable grounds for believing the statements made in the said writings to be true.”
This issue was adjusted.
“Whether, between 4th and 18th March 1868, both inclusive, the letter in the Schedule annexed was written and sent by the defenders to the pursuer; and Whether a copy thereof was sent by the defenders to Mr Fletcher Norton Menzies, Secretary of the Highland and Agricultural Society; and Whether the defenders, by said letter, did falsely and calumniously represent to the Secretary and Directors of the said Highland and Agricultural Society, or to the said Secretary or Directors, that the pursuer was incapable of discharging the duties of the said Chair of Cattle Pathology in a proper and efficient manner, and that such was the unanimous opinion of the members of the Edinburgh Veterinary College Council; to the loss, injury, and damage of the pursuer? Damages laid at £5000.”
Then followed the letter ut supra.
The case was tried before the Lord President and a jury in December 1868.
At the trial certain witnesses for the pursuer were adduced, upon the evidence of whom it appeared that the defenders made the statements contained in the said letter in the performance of their duty as members of the council of the said Veterinary College, and were therefore protected from any liability for damages for making the said statements, unless it were proved that the statements were made maliciously. The pursuer proceeded to adduce evidence to instruct malice on the part of the defenders. The defenders objected to the competency of the evidence and line of examination so taken by the pursuer, on the ground that the pursuer was not entitled, under the issue, to prove malice on the part of the defenders. The Lord President refused to give effect to the contention of the defenders, and allowed the foresaid questions and line of examination to proceed.
The defenders excepted.
After the conclusion of the evidence, the jury, by a majority of 9 to 3, found for the pursuer, and assessed the damages at £500.
The defenders presented this bill of exceptions, and also moved for a rule, on the ground that the verdict was contrary to evidence.
Lord-Advocate ( Monckeiff) and Rettie for defenders.
Solicitor-General ( Young) and Thoms for pursuer.
At advising—
The slander is said to be contained in a letter to the pursuer, sent by the defenders to Mr Fletcher Menzies, Secretary to the Highland Society. I need not read it. It is sufficient to say that it contains statements in regard to the pursuer which are injurious to his character, and which we must hold, as in granting the issue the Court has already held, to be slanderous.
The pursuer on record alleges malice. The defenders allege that they acted in good faith, and in discharge of duty, and thus the statements are privileged.
The case was tried by the Lord President and a jury, on the following issue. (Reads issue.) The verdict, by a majority of nine to three, was for the pursuer, with £500 damages.
We have now before us—1 st, a bill of exceptions for the defenders; and 2 d, a motion for a new trial by the defenders, in respect that the verdict was against evidence.
1 st, In regard to the bill of exceptions, the point which the Court have to decide comes out very clear. The pursuer alleged malice on record. The defenders alleged privilege.
The statements of the pursuer do not so bring out the privilege as to entitle the defenders to assume it, or stand on it as an admitted fact requiring the pursuer at once to put malice in issue. Therefore malice was not inserted in the issue which went to trial, though it had been averred on record; and, on the other hand, the defenders were bound to instruct the privilege which they had alleged.
Page: 275↓
The result was, that the presiding Judge was of opinion that, on the evidence led for the pursuer, the privilege alleged by the defenders was sufficiently instructed, and that, unless malice was proved by the pursuer, the defenders were entitled to a verdict,—in other words, that the jury could not find for the pursuer except they should be satisfied that malice had been proved. The pursuer then proposed to prove malice. The defenders objected to the whole line of examination, contending that the pursuer was not entitled to prove malice under that issue. The Lord President repelled the defenders' objection, and allowed the examination to proceed. This ruling is the subject of the bill of exceptions.
I am humbly of opinion that the ruling was according to law, and that the exception should be refused.
In an action of damages for slander, where there may or may not be privilege, the question whether malice shall be put in issue depends on the pursuer's averments. If he has himself brought out the privilege, he must meet it by putting malice in issue. If privilege does not come out on the pursuer's record, but is alleged by the defender, an issue is allowed without malice. But whenever the privilege appears on the proof, malice becomes essential to the pursuer's case. If he has not alleged malice on record, his case is gone. But if he has alleged malice on record, then, though the issue, framed on the footing of the absence of privilege did not contain malice, he is, in my opinion, entitled to prove malice to meet the privilege. There is a certain amount of legal malice involved in every slander. Where there is no privilege, that legal malice is presumed. When privilege is instructed, the presumption ceases, and malice must be proved.
I am not influenced by the suggestion of surprise.
When the defender pleads privilege against a pursuer who on the Record has alleged malice, I think he may be fairly and reasonably held bound to expect, and to be prepared to meet, proof of malice, when by instructing the existence of privilege he has discharged the presumption of malice. The defender's plea of privilege is not a complete answer to the action,—for malice is alleged. But it is an answer to the action unless malice is proved. Now proof of malice in aid of the presumption, and to explain the purpose and meaning of calumny, and to aggravate damages, is not incompetent where there is no privilege; but where there is privilege, proof of malice is necessary,—and necessary only when the privilege appears. The averment of malice must meet the averment of privilege. The issue must put malice, if the privilege is apparent, on the pursuer's case. When not thus apparent, but alleged by the defender, and coming out at the trial, the pursuer must prove malice when the privilege appears. There is no privilege of slander. The privilege, arising from the position of the defender, and the duty in which he was engaged, consists simply in the exclusion of the presumption, and the requirement of the proof, of malice.
The obligation of the pursuer to allege, and to prove malice in a case where privilege is pleaded and instructed, is, I think, according to settled law and practice in Scotland. In such a case it is to be assumed that the pursuer is prepared with his proof, and that the defender is prepared to meet it.
A defender who has pleaded privilege cannot plead surprise, if the pursuer at the trial meets the privilege by adducing evidence of malice, provided malice has been alleged on record.
The case of Fenton v. Currie is an important authority on this point. The manner in which the Lord Justice-Clerk (Hope), who presided at that trial, disposed of the point, appears clearly in the report, and is very instructive. The report bears (6 D. p. 708), that after the pursuer had led evidence from which it appeared that the case was one of privilege, “The Lord Justice-Clerk then stated, that as it appeared in the proof that the statement in question was made by an inferior officer of the customs, not in casual conversation, but to his superior, in presence of other customhouse officers, and in the course of an investigation and complaint made by Fenton against the conduct of the defenders, at which the defender had been summoned to attend to give explanations and defend himself, it was necessary for the pursuer to prove that the statement was made maliciously, for the purpose of injuring the pursuer, and not in the course of the defender's official communications; and that, as the pursuer did not undertake to prove malice, the case was not one which he could submit to the jury as sufficient in law-and he therefore directed the jury to find for the defender.” Again, in advising the bill of exceptions, the Lord Justice-Clerk said, “The issue in this case was properly framed “(without malice),” for the pursuer's summons did not admit enough to entitle the defender to require that malice should be inserted in the issue, as the statement was not admitted to be part of any official investigation, and indeed the pursuer draws back in the issue in part from his summons—for he did not in the issue admit that the conversation was actually in the custom-house. It is also a very great mistake—one opposed to the understanding and rules which have been acted on since the institution of jury trial—to say that the plea in defence could not be raised on the facts as they came out in proof, and especially as they came out on the pursuer's evidence, without a counter—issue. There is no countenance for such notion, either in authority or practice. In answer to this action, the defender pleaded substantially by his first defence—privilege. That plea was part of this case, undisposed of, and to be insisted in at the trial. That plea arose on the pursuer's own evidence, and of course effect was given to it. It was the answer to the action unless malice was proved. I might have let the pursuer's case close, and then have held that it was insufficient in law, in respect that the facts raised that plea. But if the pursuer had any evidence of malice, it would in that case have been too late to tender it. I intimated my opinion then before the pursuer's case closed, and without calling on the defender, that malice was necessary. The pursuer might then ha\e proceeded with evidence of malice, if he any had; but he did not undertake that proof.”
In the case of Dunbar v. Stoddart (15 February 1849, 11 D. 587), the point now before us is only brought out in an incidental observation by Lord Robertson, which was, so far as I can perceive, not expressly adopted by any of the other Judges, and which was pointedly referred to by Lord Mackenzie, Lord Fullerton and Lord Jeffrey as “an inadvertent remark,” in which they could not concur. Lord Robertson had observed, in the opinion returned by him as one of the consulted Judges—“I think
Page: 276↓
In Broom's Commentaries on the Common Law (p. 750), the rule, as recognised in England, is well explained, and is, I think, substantially the same as in Scotland.
With regard to the motion by the defenders for a new trial, on the ground that the verdict was contrary to evidence, the case must be viewed with reference to the question of malice. Unless there is proof of malice, the defence of privilege, if properly instructed, is conclusive. We must therefore ask ourselves whether, in the case before us, the pursuer has adduced sufficient proof of his allegations of malice. I have read the evidence again and again, and I have come to the conclusion that there is not only not sufficient proof of malice, but really no proof of malice at all. This is one of the clearest cases I have seen. The proof of malice undertaken by the pursuer has totally failed. Therefore, on the question of malice, the verdict is contrary to evidence, and without proof of malice this verdict cannot stand.
The species facti is, that the case, in the course of the trial, turned out to be a case of privilege, in which the pursuer could not succeed unless he proved the slander to be malicious. The defenders contended, as they still contend, that no such proof should be allowed, because the word “maliciously” was not in the issue, and they maintain that the jury should have been directed at once to return a verdict against the pursuer. The result would have been that the pursuer's case would have been irretrievably disposed of against him, and never could be tried again under any form. On the other hand, it is the contention of the pursuer, that when the case of privilege emerged, it was proper he should be allowed to meet it by evidence of that malice by which a case of privilege would be overcome.
I concur in this view of the pursuer. I think it is the only one consistent with that equity which it ought to be the object of all our forms of procedure to promote. I cannot hold that the pursuer was bound, to entertain a prophetic foresight so entire as to be aware that the case would turn out to be one of privilege, and in that view to insert malice in the issue. When the case of privilege arose, it was only bare justice that he should be allowed the opportunity of overcoming that case if he could.
Nor do I think that there was anything in the technical terms of the issue to prevent this course being taken. I concur in the view presented to ue, that in every case of slander the law implies malice or malus animus; and that the only difference between an ordinary and a privileged case is, that in the former malice is presumed without proof; in the latter it requires express evidence for its establishment. In the implication of law, malice was in the pursuer's issue, though not expressly stated; and what was done at the trial was to permit the pursuer to prove that which would otherwise have been assumed in his favour.
I am of opinion that the defenders can complain of no injustice in this. They were insisting in a case of privilege; and must be presumed to have been prepared with full evidence on the point. The result only arises in consequence of their insisting in this plea. But any other course would, I think, be injustice to the pursuer.
I am disposed to hold the point to have been decided in accordance with the view now stated in the case of Fenton v. Currie; for the course taken in the present case was explicitly stated by the Lord Justice-Clerk to have been the course adopted by him in that case; and, with this view fully brought before them, the Court disallowed the Bill of Exceptions. I do not think the authority of that case displaced by anything occurring in the case of Dunbar v. Stoddart. The third case mentioned to us, of Graham v. M'Lachlan, was not a case of slander at all, and did not raise the point now in controversy.
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I would only add, with reference to some suggestions thrown out in the course of the discussion, that I do not think the object in view would be sufficiently gained by an alteration on the issue being made in the course of the trial, to the effect of allowing the word “maliciously” to be inserted. Such an alteration could only be made on the motion, or with the assent, of the pursuer, and would tie him down beyond retrieve to a concession that the case was one of privilege. I do not think he should be so tied down; but should have it left open to him to except to the direction that the case was a privileged one; whilst, at the same time, doing what was in his power to meet that emerging case.
With reference to the motion for a new trial, I am of opinion that the rule should be made absolute, and a new trial granted. The case was sent to the jury, and I think rightly, as a case of privilege, in which the pursuer could not prevail unless he proved that the defenders acted maliciously. The jury, in finding for the pursuer, must be held to have found this proved. I think the evidence entirely fails to establish malice against the defenders. It is not merely that the verdict is not such as I myself would have given—that would be no sufficient reason for interfering with the verdict of a jury,—I think it has no evidence to support it; or, if any, only of such a paltry and insufficient nature as to place the case substantially in the same predicament. In the view of a new trial taking place, I think it best to say no more than this.
Agents for Pursuer— Lindsay & Paterson, W.S.
Agent for Defenders— M. Macgregor, S.S.C.