Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 5_367, [1867] SLR 5_367

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Tuesday, March 10. 1867.

5 SLR 367

Broomfield

v.

Greig.

Subject_1Reparation
Subject_2Slander
Subject_3Inuendo
Subject_4Issue.
Facts:

Issues founded on statements by the defender, to the effect that the bread baked by the pursuer was unwholesome, disallowed. Issues containing inuendo that the pursuer kept adulterated flour on his premises, allowed. ( diss Lord Deas).

Headnote:

This was an action of damages for slander, at the instance of Robert Broomfield, baker, South Queensferry, and member of the town council of the burgh, against David Greig, surgeon, and provost of the said burgh.

The following issues were proposed by the pursuer:—

1. Whether, on or about 1st August 1867, within or near the Council Chambers of the burgh of South Queensferry, the defender did, in the presence and hearing of David Hill, provision merchant, South Queensferry, Charles Moir, residing there, and William Russell, builder there, or of one or more of them, falsely and calumniously say, that the bread baked by the pursuer was injurious to the health of those who consumed it, or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?

2. Whether, on or about 2d August 1867, in or near the High Street of said burgh, and at or near the part thereof opposite the house occupied by the said David Hill, the defender did, in the presence and hearing of the said David Hill, and of William M'Arthur, carpenter, South Queensferry, or of one or other of them, falsely and calumniously say, that the bread baked by the pursuer was poisonous and unfit
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for human food, or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?

3. Whether, on or about 9th September 1867, and within or near the Council Chambers aforesaid, the defender did, in the presence and hearing of the said David Hill, William Russell, and Charles Moir, or of one or more of them, falsely and calumniously say, that the bread baked by the pursuer was injurious to the health of those who consumed it, or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?

4. Whether, on or about 3d October 1867, and within or near the Council Chambers foresaid, the defender did, in the presence and hearing of the said Charles Moir and others, falsely and calumniously say, that it would be very much in favour of the defender's business, as a surgeon, if the pursuer were allowed to continue baking such bread as the pursuer had been in use to bake, (meaning thereby, that the pursuer's customers would contract disease by consuming the bread baked by the pursuer,) or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?

5. Whether, on or about 3d October 1867, and within or near the Council Chambers foresaid, the defender did, in the presence and hearing of the said Charles Moir and others, falsely and calumniously say, that the defender would probably have the pursuer's premises examined, as, according to the law, peace-officers might by warrant search bakers’ premises, and if any adulterated bread or flour was found, the same might be seized and disposed of (meaning thereby that the pursuer kept in violation of the law, adulterated bread or flour in his premises), or did falsely and calumniously use or utter words to that effect, to the loss, injury, and damage of the pursuer?

Damages laid at £500 sterling.

The Lord Ordinary reported the case on the issues.

Judgment:

Gifford and Black for pursuer.

Clark and Johnston for defender.

At advising—

Lord President—As regards the first, third, and fourth issues, I am very clearly of opinion that they do not embody any actionable matter at all. What the pursuer undertakes to prove in the first and third, is, that the defender said that the bread baked by the pursuer was injurious to those who consumed it; and, in the fourth issue, that the defender said that it would be very much in favour of the defender's business if the pursuer were allowed to continue baking such bread. That is the same as the other two issues, and means that the bread was injurious to the health of those who consumed it. It would be a very serious doctrine for society if that were held to be defamatory, so as to found an action of damages. I think it is a perfectly fair statement to make. If a man is of opinion that the bread baked by a particular baker is bad, he is not only entitled to leave off taking it himself, but he may recommend his friends to do the same; and he has no better way of doing that than by saying that he thinks the bread is unwholesome. As to the second issue, that only differs from the others in this respect, that the words in it are “poisonous and unfit for human food.” Now, if the pursuer had been prepared to say that these words were used as meaning that the bread was calculated instantly to destroy human life, that would have been an allegation of a different kind from the others; but it was conceded in argument that nothing more was intended than to convey, by a strong form of expression, the idea that the bread was unwholesome. I think therefore that we must disallow all four issues.

But there remains the fifth issue, and that stands in a different position. The allegation of the pursuer is, that the defender said he would probably have the pursuer's premises examined, as, according to the law, peace-officers might, by warrant, search bakers’ premises; and if any adulterated bread or flour was found, the same might be seized and disposed of. These words standing alone, are not actionable. In their ordinary meaning they convey no imputation at all. The defender being in the position of chief magistrate of this burgh, was entitled to say that he would have any such premises examined, being, according to law, entitled to do so. But the pursuer affixes a special and non-natural meaning to these words by the inuendo, (‘meaning thereby that the pursuer kept, in violation of the law, adulterated bread or flour in his premises.’) An allegation that a baker kept adulterated bread or flour in his premises is, I think, actionable. Why I distinguish this from the other issues is, that to say that a baker keeps adulterated bread, is to impute dishonesty to him; and that is plainly actionable. The only question is, whether this inuendo, in the circumstances, and in the state of the record, is admissible, for some inuendos are so unreasonable and forced that it would not do to allow them to go to a jury. It is necessary that the inuendo should not be glaringly inconsistent with the words uttered. Now, there is nothing here violently repugnant to the words used: the words are only something short of the meaning intended to be put on them at the trial, and it is easy to suppose that the surrounding circumstances, things said by others at the meeting, things said by the speaker himself in other parts of his speech, and even the tone of voice of the speaker, may all contribute to give a meaning to the words. This inuendo, I think, makes the matter actionable. Whether the pursuer will succeed in his action or not, is a question which it will be for the jury, and not for the Court, to consider.

Lord Curriehill—I am of the same opinion.

Lord Deas—I agree with your Lordship as to the first four issues. There is some difficulty as to the word “poisonous,” in the 2nd issue, but it is not alleged by the pursuer that these words were used as meaning anything more than that the bread was unwholesome, and that issue, therefore, comes under the same category as the other three. The case simply comes to this, that the pursuer used a strong expression in saying that the bread was unwholesome. He is not said to have had any particular motive for saying that, on the contrary he is reported to have said that his business would he promoted by the sale of unwholesome bread. Taking these allegations together, they come to this, that the baking of that bread was bungled. I agree with your Lordship that, looking to a reasonable freedom of speech on such matters, it would be a very strong thing to say that an action of damages would lie for words like these. And that rather leads me to think that the 5th issue should be refused also. I cannot well see how we can admit it, consistently with our rejection of the others. I agree with your Lordship that the inuendo

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must be reasonable. The pursuer is not entitled to go to the jury with an unreasonable construction of language. I do not think the pursuer puts a reasonable construction on the words here. It is alleged that the defender said he would probably have the pursuer's premises searched. Nothing more than that. I don't think that can reasonably be held to amount to an allegation that in point of fact he had adultered bread or flour in his premises. There was some probability that he might have; but that was all. Another difficulty I have is, that suppose he said that the flour was adulterated, that is nothing more than he had said already. If the bread was unwholesome, it was adulterated. If it is injurious bread, it must be adulterated, and that not in an innocent way, so far as the effects are concerned. There is nothing worse than that added in the inuendo. The inuendo contains nothing more about the knowledge or intention of the pursuer, or that he knowingly kept adulterated flour in his premises.

Lord Ardmillan—I agree with your Lordship in the chair; and in agreeing as to the 2d issue, I do so because the pursuer has stated that he reads the words in mitiori sensu, and not as meaning that the bread would actually cause the death of the consumer. None of these statements necessarily impute any dishonest act to the pursuer, they only imply that the bread was not wholesome, and it would be a strong thing to say that people were not entitled to express an opinion of that kind.

As to the 5th issue, if it had been in direct terms a charge of adulterating the bread. I think that would have been slander. The act of adulterating implies the introduction of some adulterating mater. In the other case, the cause of unwholesomeness might have been innocent on the part of the pursuer, but not so in the case of the adulteration. Now that charge is not made directly, but there is an inuendo which I think is sufficient to found the issue. The construction may not be altogether a reasonable one, but it is not so unreasonable as to make us reject it. The statement is made to imply a charge against the pursuer of having adulterated flour on his premises, and that is a relevant ground for damages.

Solicitors: Agent for Pursuer— D. Curror, S.S.C.

Agents for Defender— Hill, Reid, and Drummond, W.S.

1867