Scottish Court of Session Decisions

This action of reparation and damages for alleged slander arose out of the following circumstances—The defender Anne Forbes, otherwise known as Sister Mary Ignatius, was principal mistress or superintendent of St Patrick's Roman Catholic School for Girls, Anderston, Glasgow. In 1880 the pursuer, Helen M'Neill, who was then fifteen years of age, and who was the daughter of an iron driller in Glasgow, was a pupil teacher in the said school. The pursuer averred that the defender having conceived ill-will and malice against her, in February of that year, in the class-room of the Convent at No. 58 Charlotte Street, Glasgow, and in the hearing of the scholars and others, and particularly of two other pupil-teachers named, “accused the female pursuer of being, and applied to her the epithet of being, ‘a street walker, and fit for nothing else,’ or used words and expressions of like import and effect, meaning and intending thereby to mean, and leading or tending to lead her hearers to understand, that she (the female pursuer) was a prostitute, or that she was a young woman of vile, vicious, and immoral habits, character, and conduct.”

She also averred that the defender in the month of August following, also within the school, in the presence of certain parties

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specified, “publicly declared that the female pursuer ‘was every inch a fast girl,’ or did use words or expressions of like import and effect, meaning and intending thereby to mean, and leading or tending to lead her hearers to understand, that she (the female pursuer) was a young woman of immoral, or at least improper, indecent, and vicious, propensities and habits. She set forth that the expressions so used by the defender of and towards her were “false and unfounded, and were used and uttered by the defender not only without justification, but solely through feelings of malice, hatred, and ill-will, and with the view of hurting her feelings, injuring her name, character, and reputation, and blasting her prospects in life.” She also averred that she had suffered in her feelings and in her professional prospects as a teacher.

The defender averred that she had charge of the whole pupil teachers in the said school, and was responsible to the managers for the conduct of the school, and for the behaviour of the teachers in connection both with the school and the church She denied having used any epithets or expressions of and concerning the pursuer, injurious to her character, prospects, and reputation in any way, and in particular the epithet charged. She explained that she had on more than one occasion, in her character of schoolmistress reproved and scolded the pursuer for unbecoming conduct in walking with young men on the street, and coming in late for school. She had done so on complaints made by the clergymen of St Patrick's Church, with which the school was connected.

The defender pleaded, inter alia—(3) Mora, “(5) Any expressions used by the defender of and concerning the female pursuer in the conduct and discipline of the school being privileged, the defender cannot be subjected in damages.”

The evidence was to the effect that the pursuer was sometimes rebuked for coming late to school, and also in connection with her dress and manner of wearing her hair. It also appeared that she had on some occasions been somewhat impertinent to the defender when corrected. It likewise appeared that the defender had been informed by the mother of two pupils at the school that she had seen the pursuer walking on the street in the company of young men. In consequence of such complaints with regard to the pursuer and other teachers, the clergymen in charge of the school requested the defender to admonish the teachers on the subjects. Certain of the teachers who were called as witnesses for the pursuer, deponed that on the first of the two occasions complained of, the defender, speaking to the pursuer, and in the course of a reproof she was administering to her, called her a street walker. The evidence on this point, however, was somewhat conflicting. The account given by the defender of the occurrence was that in consequence of the instructions she had received, and of the complaints made to her, she had on the occasion in question, and addressing herself to the whole of the teachers, used words to the effect that, according to the complaints made of them, they were little better than street walkers. She denied that she had charged pursuer with being a street walker or with any immorality. She denied also having called her a fast girl, her explanation of that charge being that in the course of reproving her as to her style of dress and deportment she had only said to her that such a manner of dressing as she was rebuking in the pursuer gave a girl the appearance of being a fast girl. The pursuer remained in the school till October 1881, when she was dismissed by one of the managers.

The Sheriff-Substitute ( Lees) found that the pursuer had failed to substantiate any subsisting ground of damages against the defender, and assoilzied her.

“ Note.—The defender says that the expressions of which the pursuer complains were not used by her, or at any rate had no bad meaning, or so far as they had, were applied to the pupil teachers generally and not to the pursuer in particular. The words used in August 1880, viz., that the pursuer was a fast girl, are not, I apprehend, of themselves actionable; and I think it is distinctly shown by the evidence that these words were not intended to convey any imputation on the pursuer's morality, but were intended to be applied, and were by the hearers to be applied, only to the style of the pursuer's dress. But the statement made in February 1880 that the pursuer was no better than a street walker and fit for nothing else, is, I am afraid, shown to have had a worse meaning.

In the ordinary case, therefore, and apart from the peculiar circumstances of the present one, as I think it is proved that the words were used, I should have held that there were grounds to justify a material award of damages.

The circumstances of the present case, however, do not on reflection appear to me to warrant such a course.

The pursuer was at the time a mere girl of fifteen, and though her excitable nature seems to have made her feel the words, there is no proof of any injury to her character or her prospects, or in any way except as regards her feelings.

Her father apparently did not then consider that there was any ground for claiming reparation on this score, for though in the knowledge of the occurrence he wrote a disgraceful letter to the defender making complaints of other matters, he made none of this.

On the contrary, he suffered his daughter to remain for nearly two years in her position of pupil teacher, and it was not till three months after the pursuer was dismissed by one of the managers for other reasons that this action has been thought of. In these circumstances, and those I am about to mention, there is reason to think that if there was any ground for claiming damages, there has been a remissio injuriarum.

The pursuer and defender stood to one another in the relation of teacher and pupil, and in that state of matters there is room for the plea of privilege. If that be so, it is matter of familiar knowledge that a pursuer must aver and prove that the false imputation complained of was uttered maliciously and without probable cause. Now, though the condescendence is thickly powdered with superfluous epithets, the needful words of ‘without probable cause’ are awanting, and no words equivalent to them are used.

But it is more satisfactory to base the judgment on other than technical grounds, and I

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prefer to rest it on grounds of equity and common sense.

The defender concedes that there is nothing against the moral character of the pursuer, and says that she never thought there was, and she further explains (what I do not doubt is true) that if the pursuer had been of immoral character she would not have been allowed to remain for a day as a pupil teacher. But though nothing is urged against the pursuer's morality, it is clearly shown that the girl was of a most foolish, insubordinate, and irritating character, and that the words complained of were uttered by the defender as the result of much provocation on the pursuer's part. The defender thought it her duty frequently to remonstrate against the pursuer's style of dress. These reproofs, instead of meeting with the attention they deserved, were sometimes disregarded, and on other occasions followed by impertinent words and acts on the part of the pursuer.

It is further proved that complaints were made to the defender from various sources of the way in which the pupil teachers under her care were in the habit of walking with young men on their way to and from the Convent, which led to the defender remonstrating with her pupils. And apparently it was with this running in her mind that the defender, who had anything but a liking for the pursuer, rashly and in anger applied to her the more serious words complained of. On the occasion in question the pursuer had arrived late for her duties, as she too frequently did, and hence the cause of this action arose. The pursuer denies that she was in the habit of walking with young men, and one or two other things of an equally innocent though of a forbidden nature, but they are all more or less clearly proved.

In the whole circumstances of the case, I therefore think that the justice of it is met by absolvitor without costs.”

The pursuer appealed to the Sheriff (Clark), who adhered.

“ Note.—While concurring generally with the views stated by the Sheriff-Substitute, I think it right to add the following observations. I do not attach any importance to the absence of the words ‘without probable cause,’ because in a case like this if the expression ‘street walker’ libelled were clearly established to have been used by the defender of and concerning the pursuer, the only defence would appear to be one of veritas convicii, and this has not been taken.

But on a careful perusal of the proof I very much doubt whether it can be held proved that these words were used by the defender of and concerning the pursuer, or in the connection libelled. There is a great conflict of evidence upon this point. And upon the whole, taking the proof as we have it, I rather incline to think that the defender really expressed herself as she herself explains in her deposition. It is quite clear that complaints had been made as to the conduct of the pupil teachers of a very serious kind; and it would rather seem that the defender did no more than make the pursuer and the others aware that such complaints had been made, and warn them against giving any cause for such statements being made about them. If the words libelled were really used in the connection contended for by the pursuer, she has herself to blame for not having brought this more clearly out; and it is here that the element of mora comes into play. When so long a period is allowed to elapse between the alleged slander and the raising of an action of damages as has occurred in the present case, it may reasonably be expected that on both sides the evidence will prove indistinct, and the witnesses though acting with the utmost honesty may confuse subsequent conversations and surmises with what they actually heard stated at the time. If the pursuer's case suffers from this, the fault rests with herself.

It is also plain that the pursuer has instructed no damage of a patrimonial kind, as she had every opportunity of doing if any such had accrued. It may be said no doubt that her feelings were injured, but if so it is remarkable that she should have so long delayed to seek for reparation, more especially when no reason for such delay of an adequate or satisfactory kind can be assigned.

At the same time, while I do not think that the pursuer has proved up to her libel, it would rather appear that the defender was unguarded and inconsiderate in the language she used on the occasion in question, and that she has thereby in some sense exposed herself unnecessarily to legal proceedings. On these grounds I think the ends of justice are reached when absolvitor is given, but no expenses are found due.”

The pursuer appealed to the Court of Session.

At advising—