Scottish Court of Session Decisions

Robert Gudgeon, manager of the Ayr Farina Mills, sued Messrs George Outram & Company, printers, publishers, and proprietors of the Glasgow Evening Times and the Glasgow Weekly Herald, for £2000 as damages for alleged slander. On 17th September 1888 a fire occurred at the Farina Mills, Ayr, and the defenders published articles commenting on the occurrence in both their papers. The articles were in practically identical terms, and the following is the article which appeared in the Glasgow Weekly Herald:—“Fire at Ayr Farina Mills. Singular conduct of the manager. A fire occurred on Monday in Messrs Hyland & Company's Farina Mills, Ayr, and before the Flames were got under, damage to the extent of £150 was done. It appears that the proceedings at the fire were somewhat unusual. The alarm was given, and the fire brigade turned out, but on their arrival at the gate of the establishment they were refused admittance by the manager Mr Gudgeon, who said they could manage the fire themselves. Superintendent M'Kay, the chief of the police, and some of his men were also refused admittance, although the fire was breaking through the roof of the buildings. Superintendent M'Kay and his men eventually got into the premises by climbing over the wall, and the fire brigade seem to have got in by forcing open the gate. They were followed by the crowd. Mr Gudgeon ordered Superintendent M'Kay to take away the hose, but the Superintendent said he had no power to do so, and the fire brigade commenced to play on the flames, which were soon got under. The Farina Mill is rather isolated, and is situated on the banks of the Ayr. The fire originated in the drying stove, in which a high temperature is kept up.”

The pursuer averred, inter alia—“(Cond. 6) The said articles, immediately above quoted, are false, and are slanders and libels of, against, and concerning the pursuer, and falsely, calumniously and injuriously represented and represent to the public that the pursuer had endeavoured o cause destruction of the said works and stock by fire, or at all events had endeavoured to prevent the fire being subdued and so cause destruction of the premises and stock, and had committed or endeavoured to commit the crime of fire-raising, and the crime of causing further destruction by fire to said works and stock as aforesaid and so defraud the insurance companies with whom the same were insured, or one or more of said crimes or offences. In any event, the pursuer is falsely and calumniously represented thereby as culpably acting in violation of his duty as manager in connection with

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and regarding the said fire. By these paragraphs, and by the representations thereby conveyed to the publie, the pursuer's feelings have been deeply injured, and his reputation and business position have also been, and may still further be, very injuriously affected, to his serious loss and damage. The works, &c., under his charge may have increased rates to pay for insurance, or insurance companies may decline such risks altogether, in consequence of the said articles, and so cause the pursuer to lose his occupation, or at all events materially injure his position.”

To which the defenders answered—“Denied. The defenders entirely repudiate the construction which the pursuer seeks to place upon the notices referred to.”

The pursuer pleaded—“(2) The defenders having falsely and calumniously accused the pursuer of committing, or endeavouring to commit, the crimes or offences libelled, the latter is entitled to solatium and reparation therefor. (3) The articles complained of by the pursuer having been published in regard to him by the defenders, and intended and understood to bear the actionable meaning put upon them by the pursuer in his condescendence, he is entitled to solatium and reparation therefor from the defenders.”

The Sheriff-Substitute ( Guthrie) allowed a proof before answer.

“ Note.—I cannot say that it would be clearly unreasonable and unnatural for a jury to find that the innuendos here stated are implied in the report in the defenders' newspapers. That was the only point argued.”

The pursuer appealed to the First Division of the Court of Session, and proposed the following issues for the trial of the case:—“(1) Whether the said articles, or part thereof, are of and concerning the pursuer, and are false and calumnious, and to the loss, injury, and damage of the pursuer? (2) Whether the said articles, or part thereof, are of and concerning the pursuer, and falsely and calumniously represent that he, being the manager of Thomas Hyland & Company's works in Ayr, had endeavoured to prevent the fire at the said works referred to in the said articles from being subdued, to the loss, injury, and damage of the pursuer?”

The appellant argued—The article was obviously enough calumnious, if false, without the addition of any innuendo. The first issue should therefore be allowed— Mackay v. Wicks, March 6, 1886, 13 R. 732. As to the second issue, the article could bear the innuendo put upon it, and when so innuendoed was undoubtedly slanderous.

The respondent argued—The article was not necessarily libellous at all, and therefore the first issue should be disallowed. With regard to the second issue, the innuendo sought to be put on the article was strained and unnatural. “Singular conduct” was not a libellous expression, especially as the article represented the pursuer as giving a perfectly proper reason for his conduct, viz., “that they could manage the fire by themselves.” At all events the issue as it stood was ambiguous, as it was not calumnious to say that the pursuer had endeavoured to prevent the fire from being subdued.

The second issue having been amended at the bar by the addition after the word “subdued” of the words, “so as to cause the destruction of said works and stock therein,” the Court pronounced this interlocutor:—

“Disallow the first issue: Approve of the second issue as amended at the bar, and appoint the same to be the issue for trial of the case.”