Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Dornoch by Alexander Mackay, station-agent, Rogart, against William Grant, merchant there, concluding for £100 as damages for slander.

The pursuer averred that on 10th December 1902 at Rogart station, and in presence of pursuer and of George Mackay and James Matheson, both railway servants at Rogart, and of others, the defender stated that the pursuer was “a liar and the biggest swindler in the parish, and that hell was too good for him,” and that the pursuer was thereby injured in his feelings, reputation, and business.

The defender pleaded, inter alia—“(3) The words complained of having been used by the defender in rixa, and as a retort to the words used by pursuer of and concerning him, and being words of mere vulgar abuse, and no specific charge made, defender falls to be assoilzied from the conclusions of this action, with expenses.”

A proof was allowed, the import of which was as follows—The pursuer succeeded the defender as station agent at Rogart. Friction arose between them as to accounts outstanding between the defender and the Railway Company. On 27th February 1902, when the defender went to the railway station to have some coals weighed, the pursuer insisted on receiving prepayment of the weighing charges, viz., twopence. This led to an altercation, during which the pursuer stated that he had had to pay a previous account for the defender. The

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defender then told the pursuer that he was a liar. On 10th December 1902 George Mackay and James Matheson entered the booking-office at the station and found the pursuer and defender already there. Mackay deponed that when he entered the pursuer and defender appeared to be on friendly terms. Thereafter the defender called the pursuer a liar and a swindler, and stated that hell was too good for him. He drew the attention of Mackay and Matheson to what he had said, saying, “I repeat it before two respectable witnesses.” Neither Mackay nor Matheson had any idea why the defender used such language to the pursuer, although they saw that the defender was in a rage. The defender in his evidence deponed that there had been a “slanging match” between him and the pursuer in renewal of their former altercation.

On 28th April 1903 the Sheriff-Substitute ( Mackenzie) found that the expressions were uttered in rixa, and after provocation on the part of the pursuer, and assoilzied the defender.

The pursuer appealed to the Sheriff ( C. Guthrie), who on 1st July 1903 pronounced the following interlocutor:—“Recals the judgment of the Sheriff-Substitute of 28th April 1903 complained of: Finds that on 27th February 1902, at the Rogart Railway Station, the defender stated that the pursuer was a liar: Finds that this statement was made in denial of a statement made by the pursuer at the same meeting that the defender was due an account to the pursuer: Finds that the said words were used in rixa, and that it has not been proved that they were used in a defamatory sense: Finds that on 10th December 1902, at the Rogart Railway Station, the defender stated that the pursuer was a liar and a swindler, and that hell was too good for him, and stated in presence of George Mackay and James Matheson that he repeated these statements before two respectable witnesses: Finds it proved that the said words were used of the pursuer in a defamatory sense, and finds that the defender has failed to prove that the said words were used by him in rixa: Finds the pursuer entitled to damages; Assesses the same at £20.”

Note.—“As I read the evidence, the objectionable statement by the defender on 27th February 1902 was provoked by the pursuer's gratuitous statement that the defender owed him an account. I regard the defender's language, however improper, as merely amounting to an emphatic denial of the pursuer's allegation.

But on 10th December 1902 George Mackay and James Matheson prove that the statements then made by the defender were unprovoked. In these circumstances I cannot accept the defender's representation that the words were used in the course of ‘a slanging match between the two of us.’ The defender stated that the pursuer was a liar and a swindler, and called George Mackay and James Matheson to witness that he had made the statement. It is not alleged that the statement was true, and I can find nothing in the circumstances to show that it was made in rixa, or otherwise than deliberately and without provocation.”

The defender appealed, and argued—The language used on 27th February had been held not actionable, as it had been provoked by the pursuer, and was uttered in rixa. The statements now complained of were made during a renewal of the former quarrel. It was unreasonable to assume that intemperate language used in such circumstances was slanderous— Christie v. Robertson, July 12, 1899, 1 F. 1155, 36 S.L.R. 899.

Counsel for the respondent was not called on.