Scottish Court of Session Decisions

Jessie Macdonald raised an action of damages for slander against J. Fritz Rupprecht, proprietor of the North British Station Hotel, Glasgow.

The pursuer averred—“(Cond. 2) On the 31st July 1893 the pursuer, in response to a request contained in a letter addressed to her on behalf of defender, went to Glasgow and had an interview with the defender, at which he engaged her to act as head cook in his hotel at a salary of £1, 1s. per week. One of the conditions on which pursuer accepted the engagement was that she should have the same staff of assistants as the defender employed at the time of her engagement. (Cond. 3) On Tuesday, 1st August, the pursuer commenced her duties as head cook in the defender's hotel, and continued to act in that capacity without complaint on the part of the defender till Thursday, 10th August. The pursuer during this period repeatedly complained to the defender that she had not been furnished with the assistance he had promised her, and that it was impossible to conduct the work of such a large hotel without a larger staff. (Cond. 4) On the evening of Thursday, 10th August, in or near the said North British Station Hotel, the pursuer again requested the defender to procure further assistance, and stated that otherwise she feared she would require to give up her situation. Thereupon the defender got into a violent temper and ordered pursuer to leave the house at once. He further then and there repeatedly accused her in the presence and hearing of Mary M'Mahon, Jessie M'Lean, Catherine Fisher, and Margaret M'Nab, her fellow-servants, now or lately in the defender's service, of being drunk and in consequence unfit for her work. The defender several times cried out in a loud voice to pursuer in a public part of the hotel, ‘You are drunk, and must go at once,’ or used words of like import and effect, meaning that the pursuer was guilty of the debasing practice of drunkenness, and that she was on account of being drunk unfit to perform her duties in the said hotel. The pursuer on being ordered by defender (who is a man of very violent temper) to leave the hotel had no other alternative but to obey…. (Cond. 5) The said statements made by the defender concerning the pursuer are false, malicious, and calumnious, and without probable cause, and are injurious to the pursuer in her feelings, character, and reputation. In particular, they are calculated to be and are injurious to the character and position of the pursuer in the practice of her vocation, and to cause her loss, injury, and damage, besides wounding her feelings. The defender made the said slanderous accusation recklessly, and without taking any trouble to ascertain whether or not it was true, and well knowing that there was no foundation for it. He was angry with the pursuer for desiring further assistance, and he simply made this accusation to browbeat her. (Cond. 6) The pursuer has suffered great loss, injury, and damage not only in her feelings but also in her character and reputation in consequence of the defender's treatment, and the false and calumnious charges he has made against her, and the defender is liable in reparation, solatium, and damages therefor.”

The defender lodged defences in which he averred, inter alia—“On the occasion referred to when the pursuer left her situation, she comported herself in a violent and disrespectful manner towards the defender. She followed after him in the hotel, shouting and calling names, and was insolent and insulting in her behaviour and language. Any statement made to her by the defender had reference to her conduct at the time and was privileged. He spoke on the spur of the moment and under provocation, but he said nothing defamatory or intended to be defamatory of or concerning the pursuer.”

The defender pleaded, inter alia—“(1) The pursuer's statements are irrelevant and in sufficient to support the conclusions of the summons.”

By interlocutor dated 14th November 1893 the Lord Ordinary ( Kincairney) approved of the following issue for the trial of the cause:—“Whether on or about 10th August 1893, in or near the North British Station Hotel, George Square, Glasgow, and in the presence and hearing of Mary M'Mahon, Jessie M'Lean, Catherine

Page: 318↓

Fisher, and Margaret M'Nab, now or lately the defender's servants, or one or other of them, the defender did falsely and calumniously and maliciously say of and concerning the pursuer, ‘You are drunk,’ or used words of like import and effect, to the loss, injury, and damage of pursuer. Damages £170.”

Against this interlocutor the defender reclaimed, and the pursuer moved the Court to vary the terms of the issue by deleting the words “and maliciously.”

Argued for the defender—The action was irrelevant. The words were not seriously meant; they were merely thrown out by the defender in rixa during a squabble between him and the pursuer. They were therefore not a proper subject for an action— Shand v. Finnie, Feb. 10, 1802, Hume's Decisions, 612; Cusine v. Begbie, December 10, 1803, Hume's Decisions, 622. The words themselves in the circumstances of the case were not actionable. Opinion of Lord President Hope in Friend v. Skelton, March 2, 1835, 27 S.J. 237. Even if the accusation was held to be seriously made, and the words were held to be actionable, it was a statement made to a servant by a master and therefore was privileged, and malice must be both averred and proved. No special malice was averred, and therefore no issue should be allowed.

Argued for the pursuer—The words of the defender were actionable, since they had hurt the feelings and reputation of the pursuer. To charge the head cook in the presence of others with being drunk was an actionable accusation, and it was for the jury to judge whether or not the accusation was slanderous— Balfour v. Wallace, July 14, 1853, 15 D. 913; Craig v. Jex Blake, July 7, 1871, 9 Macph, 973; Rankine v. Roberts, Nov 26, 1873, 1 R. 225; Farquhar v. Neish, March 19, 1890, 17 R. 716. The statement was not privileged, and malice should not be inserted in the issue. No doubt the statement was made by a master to a servant, but it had been spoken before other servants and shouted out several times in a public place— Milne v. Smith, November 23, 1892, 20 R. 95; Ingram v. Russell, June 8, 1893, 20 R. 771, opinion of Lord President Inglis p. 776; Douglas v. Main, June 13, 1893, 20 R. 793. Tendency of modern decisions was to leave the question of privilege open till the trial of the cause.

At advising—