Scottish Court of Session Decisions

Samuel Suzor, cashier, Stirling, pursuer, raised an action of damages for slander against John M'Lachlan, a partner of the firm of Messrs M'Lachlan & Brown, clothiers, Stirling, defender.

The pursuer averred—“(Cond. 1) The pursuer was for several years cashier and bookkeeper to Messrs M'Lachlan, Pepper, & Company, Limited, Glasgow, until that company was wound up in 1909. He also acted as private secretary to the late Andrew M'Lachlan, who was a brother of defender, until his death in 1910, and assisted in the winding up of the late Andrew M'Lachlan's affairs after his death; and in recognition of his faithful service to the said Andrew M'Lachlan, the agents on his estate, who are also the agents for the defender, sent the pursuer a cheque for £30. In connection with the affairs of the deceased Andrew M'Lachlan the pursuer had occasion to come into frequent contact with the defender. On the invitation of the defender the pursuer in February 1911 entered the employment of Messrs M'Lachlan & Brown, milliners, &c., at 8–12 Murray Place, Stirling, as bookkeeper. (Cond. 2) The pursuer's duties at first consisted of writing up the books of the business at 8–12 Murray Place, Stirling (including the defender's private cash-book). About six months after pursuer entered defender's employment he was transferred to the counting-house and was instructed by the defender to take a general superintendence of the counting-house department of the business. This included meeting travellers and others and checking cash with the return slips, record sheets, and disbursement books. Miss Grace M'Donald was the cash girl, and she had charge of the till. Said till could be opened by anyone during business hours without any key being required therefor. The said Grace M'Donald had control of the cash received and paid out. In her absence one of the other girls in the counting-house department took her place at the till. Occasionally the pursuer had to attend to the till when the said Grace M'Donald was absent and the other girls were not available. The pursuer had no responsibility for the cash further than checking the returns made by the cash girl as after explained. (Cond. 3) The business at 8–12 Murray Place, Stirling, consisted of a draper and milliner's business, and in connection therewith there was for the convenience of customers and others a tea-room department. The said Grace M'Donald received the checks and cash from all the departments and paid and discharged accounts and entered the receipts and payments upon the slips of the till under her charge.… (Cond. 4) At the close of business each day the said Grace M'Donald emptied the cash in the till into bags. These bags were securely fastened by her and were handed by her to the pursuer, who lodged them in the safe overnight. The bags were taken from the safe the following morning and returned unopened to the said Grace M'Donald, whose duty it was to count the money and carefully check same with the record sheets and the disbursement books and receipts. Frequently there were discrepancies between the cash and the returns in the record sheets. Such discrepancies, which might be shortages or surpluses, were inevitable and unavoidable in a business of the kind. They arose from several causes, such as failure to post small receipts or payments, stamping slip as ‘paid’ by mistake, the defender taking money from the till without noting the amount at the time, and the like. When such discrepancies occurred they were reported to pursuer by the said Grace M'Donald. The pursuer then made a personal examination of the record sheets, receipts, and books for errors, mistakes, or omissions, and when discrepancies could not be accounted for the pursuer noted them on the record sheets, and in the exercise of the discretion conferred on him by defender placed shortages against returns from the tea-room department of the business and credited said department with surpluses when these occurred. When unexplained shortages occurred at close intervals the pursuer specially reported them to the defender. Shortages and surpluses frequently occurred both before and after the pursuer entered the defender's employment. This was well known to the defender. A cash balance card was kept by the said Grace M'Donald, upon which the daily returns and ‘shorts’ and ‘overs’ were carefully noted. Said card was kept upon the cash desk and was open to the defender's inspection, and was in fact seen by him. Said card, in addition to showing the daily drawings, had special columns to show ‘shorts’ and ‘overs,’ and ‘shorts’ and ‘overs’ when they occurred were posted in said columns. The defender was well aware that shortages occurred and that they were inevitable, and he was also well aware of the causes thereof. Said discrepancies all occurred and were all ascertained before the returns were made to the pursuer, and the defender was well aware of this.… (Cond. 5) On the morning of Thursday, 3rd July 1913, the pursuer reported a shortage in cash to the defender, and advised the defender to instruct the said Grace M'Donald to be more careful. In the afternoon of said 3rd July 1913 the defender requested pursuer to attend upon him in his private room within the business premises at 8–12 Murray Place, Stirling. This the pursuer did. The defender then informed pursuer that he had spoken to the said Grace M'Donald, who had explained that she could not help ‘shorts’ and ‘overs,’ as she was not the only person who had access to the till, and addressing pursuer said —‘It is most irregular. Where has the money gone? You have taken the money, and it is your pride

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that keeps you from owning it’—or used words of the like import and effect, meaning thereby and intending to convey to the pursuer that he had been guilty of dis-honestly appropriating the money which was unaccounted for. This the defender did in the presence and hearing of Sydney Buckingham, residing at No. 10 Park Place, Stirling, the manager of the tailor and clothier's branch of the business at 59–63 Murray Place, Stirling. On the evening of the same day pursuer was dismissed.… Explained that if the defender had allowed the pursuer to explain how ‘shorts’ and ‘overs’ were dealt with he would have been able to give a satisfactory explanation of everything. The pursuer admits that the tea-room column of the record sheets was altered when ‘shorts’ and ‘overs’ were of small amount so as to square the slips with the actual cash in the till. An examination of the till slips showed this, and a comparison of the record sheets with the tea-room receipt book would have disclosed the amount of the discrepancies. (Cond. 6) On Monday, 7th July 1913, in response to a letter from defender, the pursuer waited upon the defender in his private room. The pursuer then and there offered to give the defender the fullest information and explanations about shortages, but the defender declined to listen, and stated to the pursuer that he would listen to no explanation unless and until pursuer admitted that he had misappropriated money from the till. Addressing the pursuer the defender said—‘I will not listen to anything. It does not take two to see that you have taken the money. You must have taken the money. You have no character and have nothing to your name. It is only your pride that keeps you from owning it’—or used words of the like import and effect, and added that if pursuer did not admit having taken the money he would compel him to do so by having the books audited and the matter placed in lawyers' hands. These expressions were used by the defender to convey to the pursuer, and were intended by him to convey, that pursuer had dishonestly appropriated the defenders' money. The pursuer protested his innocence and offered explanations, but the defender refused to hear him and still persisted in said unfounded accusations. (Cond. 7) The said statements made on 3rd and 7th July 1913 by the defender of and concerning the pursuer were false and calumnious and were made by him recklessly, maliciously, and without probable or any cause. The defender knew that the pursuer did not handle the cash and that the shortages occurred and were ascertained before the returns were reported to the pursuer by the said Grace M'Donald. Had the defender even listened to the explanations which pursuer tendered, and inquired into the matter, he would have found, as was the fact, that all the shortages occurred and were ascertained before the returns were reported to the pursuer by the said Grace M'Donald. Shortages had been inquired into on former occasions and the defender had himself been found at fault. There was no ground whatever for said accusations against pursuer, as defender well knew, and they were made by the defender maliciously and recklessly. The defender about the beginning of 1913 changed in his demeanour to pursuer, with whom up till then he had been on friendly and intimate terms. He adopted a guarded and suspicious attitude towards pursuer and evinced unfriendly feelings towards him. He ceased to speak to the pursuer or to consult with him in the counting-house as he had previously done, and when he did speak to the pursuer he addressed him in a quarrelsome and fault-finding manner. The defender had conceived a quite unwarranted animus against the pursuer. At or about the same time the said Sydney Buckingham, who had been in the habit of visiting at the pursuer's house frequently, discontinued his visits and ceased to converse with the pursuer in the counting-house as he had done before. The pursuer believes and avers that the defender, to gratify his animus against the pursuer, made said statements maliciously for the purpose of wounding and injuring the pursuer. Further, in or about the end of the month of January 1913, the defender, without informing the pursuer, had arranged for painter work being executed at the premises on a Saturday afternoon. The pursuer left at his usual time on said Saturday after having arranged for the premises being closed up, and on the following Monday he was seriously upbraided by the defender for having been absent from the premises when the painters were there. The defender declined to listen to the pursuer's explanation that he had not been aware that the painters were to be there, and had not known till Monday morning that they had been there. The defender then stated that he did not want any more obligation from the pursuer, and that he was to leave the premises on Saturdays at 1 p.m. Defender then instructed a Miss M'Kenzie from ‘Mack's’ Stores, Stirling, to attend at Murray Place on Saturdays to replace pursuer after 1 o'clock in seeing to the premises being closed up. A few days later, in or about February 1913, the defender unwarrantably accused the pursuer of having entered in the cash-book a larger sum than had been paid to the buyers in respect of their visit to London, and demanded to know what had become of the difference. The sum so entered in the cashbook was £48. It was subsequently ascertained that that was the exact amount which the defender himself had paid said buyers, and which had been entered by him at the time in the scroll cash-book. Early in March 1913 the defender took exception to pursuer smoking a cigarette in the premises after business hours, and ordered him to stop doing so. Prior to this pursuer had smoked an occasional cigarette in the shop after business hours, and up till the end of 1912 had been repeatedly invited by defender to do so, and had been supplied with cigarettes by defender, who himself smoked. All of these things were done by defender to wound and annoy the pursuer and, if possible, to induce him voluntarily to leave defender's service.

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When the defender found that he could not get the pursuer to give up his situation, he took steps to dismiss him by making the false accusations against him before condescended on. The pursuer has in consequence of said unfounded accusations suffered, and will continue to suffer, greatly in his feelings and reputation, and his chances of securing and retaining responsible employment have been thereby greatly impaired, and his character has been blasted.”

The defender pleaded, inter alia—“(1) The pursuer's statements being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. (3) The occasions in question having been privileged, and there being no relevant averment of malice, the action should be dismissed.”

The pursuer proposed the following issues—“1. Whether on or about the 3rd day of July 1913, and within his business premises at 8–12 Murray Place, Stirling, the defender, in the presence and hearing of the pursuer and of Sydney Buckingham, residing at No. 10 Park Place, Stirling, falsely, calumniously, and maliciously addressed the pursuer in these words, and stated of and concerning the pursuer—‘It is most irregular. Where has the money gone? You have taken the money, and it is your pride that keeps you from owning it’—or words of the like import and effect, meaning thereby that pursuer had misappropriated money belonging to the defender, and had been guilty of dishonesty, to the loss, injury, and damage of the pursuer. 2. Whether on or about the 7th day of July 1913, and within his said premises, the defender falsely, calumniously, and maliciously stated to the pursuer—‘It does not take two to see that you have taken the money. You must have taken the money. You have no character and have nothing to your name. It is only your pride that keeps you from owning it’—or used words of the like import and effect, meaning thereby that pursuer had dishonestly appropriated money belonging to the defender, and had been guilty of dishonesty, to the loss, injury, and damage of the pursuer.”

On 16th December the Lord Ordinary found that the averments of the pursuer were irrelevant to support the issues proposed by him, disallowed the said issues, and dismissed the action.

Opinion.—[ After summarising the pursuer's averments]—“The pursuer complains of these statements, which he avers falsely accused him of dishonesty, and he proposes two issues. He admits that the occasions on which the expressions complained of were used were privileged, and has consequently put malice in the issues.

I am of opinion that the issues cannot be allowed. I think it is clear from the pursuer's own statement of the case that the defender, after investigation and inquiry, had reason to believe that the pursuer had taken the money. I assume that he was mistaken in this belief, and that the pursuer was innocent. Yet if the defender honestly believed that he was guilty, he was clearly privileged in telling him so. That indeed is admitted. But it is said that he was actuated by malice, and the pursuer sets forth a statement of facts from which he contends malice can be inferred. He says that about the beginning of 1913 the defender's demeanour to him changed. He became guarded and suspicious, quarrelsome and fault-finding. He discontinued his visits to the pursuer's house. He upbraided the pursuer on one occasion because he had left the shop when all the employees were away and painters were in. On another occasion he ‘took exception to pursuer smoking a cigarette in the premises after business hours, and ordered him to stop doing so.’ I do not think that malice could reasonably be inferred from any or all of these things. There may have been very good reason for the change of demeanour, or it may have changed—as sometimes happens—without any reason at all. To cease visiting, or to find fault, is not evidence of malice, nor is it malicious to ask a servant to attend to his duty, and I can conceive many excellent reasons for stopping cigarette smoking in a milliner's shop. The impression I form from the pursuer's statement of facts is that the defender was at one time an exceptionally considerate and friendly master, and I do not think it is reasonable to infer that his change of demeanour sprung from malice. He appears to have performed the disagreeable duty in connection with the disappearance of cash with care and consideration. After investigation he invited the pursuer to his private room with no one present except the manager, and then told him in moderate terms the opinion at which he had arrived.

On the whole matter I am of opinion that the issues should be disallowed and the action dismissed with expenses.”

The pursuer reclaimed, and argued—Privilege was here admitted, but malice had been relevantly averred. The privilege had been abused, for the occasion had been used, not for the purpose of making inquiry and getting explanation, but in order to make reckless accusations, opportunity of explanation being refused. In order to establish malice it was not necessary in all cases to aver and prove extrinsic facts. Malice might be inferred from the surrounding circumstances— Hamilton v. Hope, March 10, 1827, 2 F.D. 325, L.J.-C1. Boyle at p. 338; Torrance v. Leaf, 13 S. 1146, Lord Moncreiff at 1151—and, in particular, from the recklessness of the charges made— Laidlaw v. Gunn, January 31, 1890, 17 R. 394, 27 S.L.R. 317; Neill v. Henderson, January 25, 1901, 3 F. 387, 38 S.L.R. 286—and from the failure to make reasonable inquiry into the truth of the allegations made— Dinnie v. Hengler, 1910 S.C. 4, 47 S.L.R. 1; Lee v. Ritchie, May 14, 1904, 6 P. 642, 41 S.L.R. 509. It was true Farquhar v. Neish, March 19, 1890, 17 R. 716, 27 S.L.R. 549, was to the contrary effect, but disapproval of that case had been expressed by Lord Trayner in Reid v. Moore, May 18, 1893, 20 R. 712, at 718, 30 S.L.R. 628. Originally a general averment of malice was sufficient except in cases of judicial slander. What had been an exception was extended

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apparently to become the rule— Macdonald v. M'Coll, July 18, 1901, 3 F. 1082, at p. 1084, 38 S.L.R. 781—but, notwithstanding that case, they submitted that in the present case it was not necessary to aver facts and circumstances. In any case facts and circumstances had here been averred from which malice might be inferred. The case was similar to that of Dinnie v. Hengler ( cit. sup.). A number of slight circumstances concurring in one direction might be more convincing than one strong circumstance— Bell v. Black & Morrison, 38 Sc.J. 412, Lord Benholme at 414. It was relevant for this purpose to show the previous course of conduct of the defender to the pursuer— Blake v. Albion Life Assurance Society, 1878, 4 C.P.D. 94.

Argued for the defender and respondent—The pursuer's own averments disclosed that the defender did not bring the accusation against the pursuer recklessly, but that he had ground for making the charge. The charge was not made with undue violence or intemperate excess, nor were the words impertinent to the lawful inquiry. Accordingly if malice was to be inferred it must be from extrinsic facts and circumstances, but here the facts and circumstances averred were so trivial that no jury could reasonably infer malice from them. They did not require to put their case so high as that facts and circumstances must always be averred, but on this matter they referred to Farquhar v. Neish ( cit. sup.); Sheriff v. Denholm, 1897, 5 S.L.T. 234, per Lord Kyllachy, approved in Macdonald v. M'Coll ( cit. sup.); Campbell v. Cochrane, December 7, 1905, 8 F. 205, per Lord President Dunedin and Lord M'Laren, 43 S.L.R. 221; Chalmers v. Barclay, Perkins, & Company, Limited, 1912 S.C. 521, 49 S.L.R. 465; Gorman v. Moss's Empires, Limited, 1913 S.C. 1, 50 S.L.R. 1; Couper v. Lord Balfour of Burleigh, 1913 S.C. 492, 50 S.L.R. 320.

At advising—