Scottish Court of Session Decisions

James Wood, wine and spirit merchant, residing at Kinleith Arms, Juniper Green, and Mrs Margaret Prentice Wood, his wife, with her husband's consent and concurrence, raised an action against the Edinburgh Evening News, Limited, in which they claimed £1000 damages for slander alleged to be contained in an unauthorised and untrue advertisement for a wet nurse published in the defenders' newspaper. The pursuers averred—“(Cond. 1) The pursuers were married on 23rd November 1909. For some time previous to his marriage the pursuer the said James Wood carried on business, and he still carries on business, as a wine and spirit merchant at 8 Young Street, Edinburgh, and in Edinburgh he has a large circle of friends. The pursuer, the said Mrs Wood, previous to her marriage carried on business, and she still carries on business, as a wine and spirit merchant at the Kinleith Arms, Juniper Green. Since their marriage the pursuers have resided and still reside together at the Kinleith Arms aforesaid. There are no other married persons living in the establishment. (Cond 2) On Friday the 15th day of April 1910 the following notice appeared among the notices of situations vacant in the issue of the Edinburgh Evening News of that date—‘Nurse (wet) wanted immediately. ApplyKinleith Arms, Juniper Green. Fares paid.’ The same notice also appeared in the issue of the said Edinburgh Evening News of Saturday 16th April 1910. (Cond. 3) Neither of the pursuers authorised or instructed the said notice to be inserted. The pursuers had in point of fact no occasion for the services of a wet nurse. No child had been born at Kinleith Arms. The said notice was not received by the defenders in the ordinary course of business, or at all events it was not dealt with by them in the proper way. It is believed and averred that the said notice was handed to an employee of the defenders at their office at 18 Market Street aforesaid over the counter by some person or persons unknown. The notice was not signed, nor did it contain any indication of the person who was responsible for its insertion. The defenders, without making

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any inquiry as to the genuineness of the notice, or even asking for the name and address of the person or persons who tendered it, inserted it in the column of their newspaper in which ‘Situations Vacant’ are advertised. The defenders were guilty of negligence in inserting the said notice without inquiry or authentication. Immediately the said notice appeared the pursuers informed the defenders that it was fictitious and unauthorised, and requested them to take steps to ascertain the person or persons who had ordered its insertion. Inquiries were made with the view of discovering the person who had instructed its insertion, but without success. (Cond. 4) The said notice is of and concerning the pursuers and each of them, and is false, calumnious and malicious. It falsely, calumniously and maliciously represents that the female pursuer had within five months of her marriage given birth to a child of which the male pursuer was the father, that each of the pursuers had been guilty of antenuptial fornication, and was of immoral character. The said notice was so understood by various members of the public who read it.”

The defenders admitted publication, and pleaded, inter alia — “(1) The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.… (3) The statements complained of not being defamatory of the pursuers, the defenders should be assoilzied.”

The Lord Ordinary ( Guthrie), by interlocutor dated I6th June 1910, allowed an amended issue in the following terms — “Whether the pursuers were married on 23rd November 1909, and whether the defenders, in the issues of the Edinburgh Evening News of 15th and 16th April 1910, printed and published a notice in the terms set forth in the schedule annexed hereto? Whether the said notice is of and concerning the pursuers, and is false and oalumui-ous, to the loss, injury, and damage of the pursuers? Damages for pursuer James Wood laid at £1000 sterling. Damages for pursuer Mrs Margaret Prentice Hamilton, or Wilson, or Wood laid at £1000. Schedule—‘Nurse (wet) wanted immediately. Apply Kinleith Arms, juniper Green. Fares paid.’”

The defenders reclaimed, and argued — The advertisement was ambiguous in its terms and need not apply to pursuers. The case was not in pari casu with Morrison v. Ritchie & Co., March 12, 1902, 4 F. 645, 39 S.L.R. 432. There was no necessary connection between the advertisement and the pursuers.

Argued for the pursuers—The advertisement was so closely connected with the place of residence of the pursuers that it would inevitably be associated with them. Its terms were such that those who knew the circumstances of the recent marriagc would believe that these people had had a child. Morrison v. Ritchie & Co., cit. supra, was exactly in point. Reference was also made to M'Lean v. Bernstein and Others, June 1, 1900 (O.H.), 8 S.L.T. 42.

In the course of the argument pursuers, to meet an objection from the Bench, were allowed to amend their issue by adding this innuendo,—“meaning thereby that the female pursuer had within five months of her marriage given birth to a child, of which the male pursuer was the father; that each of the pursuers had been guilty of antenuptial fornication, and was of immoral character.”