Scottish Court of Session Decisions

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Cite as: [1867] SLR 4_165, [1867] ScotLR 4_165

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SCOTTISH_SLR_Court_of_Session

Page: 165↓

Court of Session Outer House Second Division.

Thursday, July 4 1867.

Lord Cowan Lord Benholme Lord Neaves Lord Justice-Clerk

4 SLR 165

Milne

v.

Bauchope.

( Ante, vol. iii., p. 372.)

Subject_1Reparation
Subject_2Slander
Subject_3New Trial
Subject_4Contrary to Evidence—Head-Master—Privilege.
Facts:

In an action of damages for slander at the instance of a school-mistress against a master, who claimed to be head-master of the school and who maintained the privilege of his situation to utter the slander libelled on, new trial refused, in respect the slander did not fall within the privilege.

Headnote:

In this case, Eliza Milne, teacher, was pursuer, and John Bauchope, teacher, was defender. The following issue was submitted for the pursuer:—

“It being admitted that the pursuer is a certificated teacher, and was infant schoolmistress of St Mary's Sessional School, Edinburgh, from October 1861 to July 1875, and that the defender was, during said period, and still is, a master in said school.

“Whether, on or about the 10th day of January 1865, the defender did write and transmit, or cause to be written and transmitted, to the Rev. Dr Grant, minister of the parish of St Mary's, Edinburgh, a letter in the terms contained in the schedule. And whether, in said letter, the defender did falsely and calumniously say of and concerning the pursuer that she had told falsehoods—to her loss, injury, and damage?

“Damages, £500.”

The letter in question charged the pursuer with misrepresentations of fact regarding some of the pupil teachers; of conduct in many respects subversive of discipline; and concluded by saying:—“She questions some of the scholars about me in a way she ought not to do. She has spoken insolently and falsely to me and about me in presence of the pupil teachers and others. In many instances she has shown little or no interest in school, and she seems to be actuated by a spirit of petty annoyance. She has sometimes told direct falsehoods, occasionally to the knowledge of the pupil teachers. Her conduct in ignoring my position, and the daily system of petty annoyance which she pursues, makes me desirous of having this state of matters remedied as soon as possible.”

The following counter issue was submitted for the defender:—

“Whether the statements in the said letter, to the effect that the pursuer had told falsehoods, are true?”

The jury, by a majority of nine to three, found that, although by the letters and documents before The Court the defender is regarded as head-master, there is no evidence to show that he was appointed to such an office, and the jury do not recognise him as such; also by the same majority they found for the pursuer, and assessed the damages at £10.

The defender moved for a new trial, on the ground that the verdict was contrary to evidence, and obtained a rule.

J. C. Smith and Kerb showed cause.

Watson and Gloag in support of the rule.

At advising—

Judgment:

Lord Cowan said—I am of opinion that the verdict ought to stand, and that a motion for a new trial should be refused. That the pursuer's issue was proved, and that the counter-issue was not supported by evidence of any materiality whatever, are positions which are indisputable. From the alleged position of the defender as head-master of the school, it was argued that, as malice was not established; the verdict ought to be set aside. The terms of the verdict on this point are—“That although by the letters and minutes before the Court the defender is recognised us head-master, there is no evidence to show that he was appointed to such a situation.” It was as head-master that the defender claimed privilege, and the jury found him not appointed to that situation. But the verdict proceeds—“And they do not recognise him as such.” They refuse to recognise him as head-master in the question in the issue before them. The operative part of their finding as regards the case they were trying is this latter part. On these premises they find for the pursuer. Two questions here occur—(1) Whether the jury have egregiously erred as to the view they have taken of the position of the defender as head-master? and (2) whether they have egregiously erred in refusing to recognise him as head-master in this question with the pursuer? On these points there is evidence both documentary and parole:—(1) The position of the defender in certain minutes and letters is stated to be that of

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head-master: but it is remarkable that in a letter, dated 1st November 1856, from the secretary of the directors, intimating his appointment, it is only stated that he is “appointed on the situation as teacher.” It is therefore not astonishing to me that the jury did not find he was appointed head-master, and it is not so flagrantly contrary to evidence as to require it to be quashed. (2) But. secondly, the question is, have the jury not erred in not recognising him as such in this question with the pursuer? I do not dispute the privileged position of a person placed in the position of governor, head-master, or rector of an institution, with proper functions and privileges in relation to its managements; and his communications in this position would not justify an action of slander unless malice was the ground. On this point the following remarks occur:—(1) The pursuer was appointed female teacher in the school, and the terms of her appointment did not, as far as they go, place her in any subordinate position; and her appointment flowed directly from the directors. (2) It does not appear that the defender had any but a general control of the school, and he had no right to interfere with the pursuer in her demeanour or her treatment of her pupil teachers. But the letter appended to the issue is not confined to matters within the defender's province as head-master. Some of his accusations have reference to matters occurring in private life— e.g., 1 and 2 of special charges. Reads 1 and 2 of schedule, p. 2 of issue). This falls under the 2d of my heads as to the view the jury took of his position as head master in this question. Such charges cannot fall within his position as head-master, even supposing him to have occupied such a position. No. 3 (p. 2 of issue), and 6 and 7 of subordinate statements, fall still more strongly under this second head. These last charges form the sting of the letter as all alleged slanderous communication. These cannot fall within the position claimed by the defender. Such a position will not justify such calumnious statements. The counter-issue taken in justification is in general terms, and had reference to specific instances mentioned in record (stat. vii., p. 12). Counter-issue is “Whether the statement in the said letter, to the effect that the pursuer had told falsehoods, are true?” I am of opinion that the counter-issue ought not to have been in the vague terms in which it is. The charges of falsehood are vague and general; and in the proof led we shall search in vain for evidence of that clear and convincing character which would alone be sufficient in such a case. The jury have returned a verdict which was imperative in a so deeply implicated matter of simple justice. On the whole, I am of opinion that the verdict ought not to be disturbed.

Lord Benholme—I have arrived at the same conclusion with Lord Cowan. The issue does not mention privilege nor malice. (Reads issue.) This issue is clearly proved. That it was falsely said no one can doubt, nor is it more doubtful that it was calumnious. The question is, is there anything in the question of privilege or non-affirmation of malice which affects this? It is true that in such a case a case of privilege may emerge on proof. But the jury do not recognise any, and on this point they have merely a certain finding—“That although by the letters and minutes before the Court the defender is recognised as head-master, there is no evidence to show that he was appointed in such a situation, and they do not recognise him as such.” It is a matter of fact that in minutes and letters he was recognised as such, and it is urged by the defender that as he was head-master the verdict is wrong. But no minute of Iris appointment has been shown to prove it. However, I do not lay much stress on that. He was a master in this school, and had a duty to perform in regard to it, having an interest in its character and success. If then, as such, a privilege exists, does it cover this communication made by the defender to Dr Grant? If the verdict is wrong we must also be prepared to say that such privilege was sufficient to cover such a communication. That may have been what the jury intended to say when they said they did not “recognise him as such.” My own idea is that they thought no situation of privilege proved. But this does not exhaust the matter, for this communication goes beyond any privilege. In these circumstances we cannot interfere with the verdict.

Lord Neaves—I concur in the opinions which have been delivered. I confess I do not think we are called upon to disturb this verdict, nor would we be justified in doing so. I would regret if so much time was to be devoted to a new trial. As regards the question of justification, there cannot be the smallest ground for overturning the verdict. It would require very strong evidence indeed before we could give a new trial, when the jury have acquitted the party accused on the counter-issue. But there are no grounds even for approaching this. Privilege depends, first on fact, second on law—1st, on the situation claimed; 2d, on the law of privilege as to that situation. The jury found something in this man's position as head-master. He held a very equivocal position. The defender was master, the pursuer mistress. That was all. It does not come out clearly that he was head-master in the high sense which he attempts to arrogate to himself. I cannot say that the jury were wrong. As regards this point I especially agree with Lord Benholme. We must see that the nature of the communication for which privilege is claimed falls under that privilege. A situation giving him a general charge in the school will not justify this letter, especially when the charges are in a general form, of which it is impossible to approve, as e.g., charge 7, “She has sometimes told falsehoods, occasionally to the knowledge of the pupil teachers.” A letter of this kind written without communication to the party charged, and without specification of charges, is one of which it is impossible to approve. It is impossible to Pay that the jury have disregarded any just privilege, and I cannot say that the verdict is contrary to substantial justice.

Lord Justice-Clerk—I confess I feel great satisfaction that your Lordships have come to the conclusion that the verdict should not be disturbed. I think we are not in a position to say that there has been any substantial injustice done. But in regard to the special finding of the jury, I confess I have had some hesitation. They have expressed an opinion on the matter of fact of the appointment of the defender as head-master. But for the introduction of that finding I would have had no hestitation in supporting the verdict. But there is a ground in the evidence to which this finding is opposed. It seems opposed to the great weight of the evidence. There are, indeed, no minutes of the appointment of the defender as head-master, but several minutes and letters expressly recognise his position. The difficulty arises from the consideration that the particular finding of the jury is like an affirmation that their verdict is rested on this

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question. But it may be that the construction of finding is that it is only as to the matters which were particularly before the jury. Therefore although I have expressed these doubts, I do not wish to dissent from the opinions of other judges, I consider that no injustice has been done.

The rule was accordingly discharged.

Counsel:

Agent for Pursuer— James Bruce, W.S.

Agent for Defender— Andrew Scott, W.S.
1867