SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2447, 11 March 1909, Page 6

SUPREME COURT.

CIVIL SITTINGS. CLAIM FOR DAMAGE'S. The civil sittings of the Supreme Court were continued yesterday,, before His Honor Mr. Justice Edwards. The whole day was occupied in the hearing of the claim for £375 damages brought by James -Attridge Connell against the Gisborne Times Company, Ltd., for alleged libel and wrongful dismissal. When the Court opened, Mr. Johnston immediately commenced to call his evidence, and put the plaintiff in the box. James Attridge Connell, plaintiff, said that he was. over 50 years of age. He had a very large and varied experience, including the technique of management. He had been employed on the “Timaim Herald,” “Lyttelton Times;” “N.Z. Times,” “Timaru Post,” and other papers. He was editor and manager of the “Marlborough* Herald,” and editor of the “Timaru Post” and the “Gisborne Times.” In July, 1906, in response to an application, ho was appointed to the latter position. lie had interviews with some of the directors, and got his appointment in Wellington. He made arrangements in Wellington regarding machinery for the company., and arrived in Gisborne on August 4th to commence bis duties. He entered into- an agreement (produced) with the defendant company. The agreement was dated 15th October, but lie was paid from August 4. On August 18 he received written instructions (produced) as to the policy lie was to pursue. His Honor said that he did not see what all these questions were for. The only matter was if plaintiff had refused to publish a certain article, otherwise his duties might have been performed satisfactorily. Mr. Johnston said that they wished to show that plaintiff was justified in not publishing the article. His Honor said that the proper performance of the plaintiff’s duties generally was not questioned. Continuing, plaintiff in his evidence said that he wrote all the leading articles. including some on the hospital management. Mr. Sainsbury entered an objection at this stage, and Mr. Nolan said that none of these things were disputed. Mr. Johnston said he intended to put iu all the leading articles. Dir. Nolan said that he would object to the articles going in ns evidence.

Continuing again, plaintiff stated, in answer to Dir. Johnston, that he wrote certain leading articles, and lie identified the articles as those he had written. The articles were written in December. 1906, and January, February. and 1 April of 1907. The bundle of papers containing these articles Dir. Johnston sought to have put in as evidence. Dir. Nolan objected, and his Honor said that he would not admit them as evidence, but would have them marked for purposes of identification, in case the case went to the Court of Appeal. Dir. Johnston was proceeding to question witness as to why the articles were written. Dir. Nolan objected, as the articles had not been admitted as evidence. The only article they said was not true was the article of April 23rd. Witness further stated that he. remembered the hospital inquiry at the time of the case of a Miss Olsen. When he wrote the leading articles of December sth and December 10th lie had certain letters before him. Dir. Nolan again objected, and his Honor disallowed the question. Plaintiff then said that when he. wrote the article of April 23rd lie had a knowledge of certain letters written to the editor of the paper, and signed by “Observer.” “John East,” and “DY. Liosant Clayton.” The letters had been published in the “Times,” hut lie had not them before him at the- time, but had previously dealt with them, and had them in his mind. Dir. Nolan objected to these letters as being irrelevant to'the case. Dir. Johnston, desired to put the letters in to the Court, as they were necessary to show the circumstances leading up to the writing of the article ot 23rd April; alto, that plaintiff had a right to put in all the information he had on the subject of the matter contained in the article of April 23rd, and thus show the Court his ’knowledge of the facts. The letters were written to the newspaper suggesting that a hospital inquiry was needed, and it was plaintiff’s duty to comment on them. His Honor said that he did not think there was any duty at all.

; Mr. Nolan formally objected to the letters being taken in evidence, jf His Honor ruled that the plaintiff j! was entitled to show -any evidence that would tend to show that plaintiff had good and reasonable grounds for writing the article of April 23rd. jt Mr. Nolan said that it would be ap- ■| >;• parent to bis Honor that the letters had absolutely no bearing on the mat'll 1 ter. | •'■'His Honor said that he had not time | , .. to read' the letters. [j Continuing his evidence, plaintiff

said that before he wrote the article of 23rd April ho was interested in the •: ' '-.question of hospital management, and i complaints had been made to him of the existing conditions. There had also been public complaints and sug- ■; gostions for a change of government. | After publication of the article of 23rd April lie received no notice or any letter from the directors. He afterwards saw a copy of the letter which was j .supposed to have been sent, but he had no recollection of receiving the original letter. He had never been given instructions not to adopt a par- : tisan attitude in matters of the sort. I He was not aware at the time of re--1 ceiving a letter from the directors f 'that a libel action was pending over ij the article of 23rd April. The directors’ meetings, took place at Mr. Clavii ton’s ollico, where the minutes of the r meetings were also kept. He had | never seen those minutes. No writ ! had been served on him for libel, but | he was asked to attend a meeting of I directors, who.n he was told that libel 1: proceedings were threatened. On May | 2nd, 1907, lie received a letter from | 'Messrs. Blair and Sainsbury. asking for'information regarding the statements that had been made regarding r the condition of a patient named Fosler in the hospital. lie saw Mr. !j • • Blair, and told him that lie could prove that the man Foster had throe / , operations, -and was suppurating.-. Ho ' was not sure that he told the direc- ' tors how lie could prove the statements about Foster. . He was not told that liis proof was insufficient, and

prior to his dismissal he was asked, ii a note from the chairman of directors .fofcgupply further information. He got rthiA letter at 11 p.m.. and was askec' io have the information for Mr. B!ai. •-before 10 a.m. the following morning as he was going to Auckland by stea .{her. Owing to the shortness of the notice, he was unable, to get the information, but saw Mr. Blair at tin steamer, and gave him the details of the information he could get. Mr. Blair did not advise him at that time what would bo necessary, nor did Dir. Blair toll him that it was proposed to settle the libel action. The question of an a oology was not raised at any time., nor was lie at any time taken into the confidence of the directors a: to what they were doing or intended to do. He was never again asked to supply further information. He tool; no part in the negotiations with Dr. Morrison lor a settlement, as lie did not know they were proceeding. The amount of the libel action was £3OOO. The chairman of directors did not at any time consult him as regards the ettlement. On 6th May he received a letter from the chairman warning him not to interfere, as a servant.. pi the company, in the matter of the death of a child named Rogers. H< obeyed .these instructions, and on May 11th received another letter from the directors enclosing the form ol apology for insertion, and a request for no comment on it. It was late when he received it, about 11 p.m.. and interviewed Dir. Hallamore, i director of the company, at his house, and objected to publish it, pointing out the unfairness of the apology to himself. He did not publish the paragraph, but he was not given to nil derstand that lie would he dismissed if he did not’publish it. On May 13th he received a copy of a resolution pas sod by the directors, calling on. him to publish the apology, and deleting a phrase that he had objected to. After the receipt of this letter he wrote to the directors explaining that he had not published the apology on the advice of Mr. H. J. Finn, his solicitor. Ho was not aware if the directors had asked his solicitor for lrs reasons for his action in not publishing the apology. At his interview with Dir. Hallamove he did not mention that lie objected to another part of the apologv than that the directors had agreed io delete. On May 13tli he forwarded his resignation to the directors, giving them six months’ notice, hut oil the same day he withdrew his resignation oil the advice of his solicitor, who, on ihe same day, wrote to the chairman of directors 'giving plaintiff’s reasons for refusal to publish the apology. On the 14th Dlav he received Ins instant dismissal, bn the grounds that he had disobeyed the instructions of the directors. Witness replied to this, returning the cheque enclosed, and holding the company responsible for their conduct towards him. After leaving the service of the company he received a letter from Dlessrs j flair and Sainsbury asking that he should authorise that the apology hould be inserted in the “Herald.” To this letter lie did not reply, and the apology was published in the New Zealand “Herald,” “Evening Post,” and “Gisborne Times.” He received a copy of the New Zealand “Herald’ containing the. apology, marked with [due pencil, and with the words “This is up against you,” and signed “J.J.’ liis Honor said that the copy of the paper con'd not be. admitted, as such evidence was not relevant as ■ bowing that the publication of the apology had been in any way injuri- ' ous in bis profession. * -Since his dismissal he had tried for several appointments as editor, hut had failed to secure one. In the . “Times” there had been published cerI tain correspondence, headed “Medical Etiquette,” which passed between I)r. ! Collins and the medical .superintendent j c f the hospital and the chairman of j the Hospital Trustees. The correspondence dealt with the refusal ol Ihe medical superintendent to allow l Dr. Collins to visit a patient named Foster in the hospital. The article of 23rd April was written largely on account Of til’s correspondence. Counsel here took witness line by line through the article of 23rd April, and witness said that portion of the article was commenting on the correspondence touching on medical etiquette, and he thought- that the comment was perfectly justified. The view expressed in the article was jus view of medical etiquette, and he did Hot take the matter up on behalf of |)r. Collins, hut as a matter of principle. He held that medical men should he allowed to see their patients, who were in the hospital as if they were not allowed to do so it might militate against the patients. That was what he meant when he wrote a portion of the article. The paragraph referring to the condition of the man Foster contained assertion of fact. He did not know Foster, hut made the statement from information he had received. He also had a knowledge of the practice of surgery and bacteriology. He had information that at this time the percentage of suppurating cases in the hospital was above "the average. There were public reports of the East and Olsen - cases, and in both of these he understood that suppuration had set in. He visited the hospital and there saw about the most primitive sterilising plant he had ever seen.

His Honor here interrupted, saying that he was not going to take plaintiff’s evidence as expert medical evidence.

Cross-examined hy Mr. Sainsbury, plaintiff said that he thought.that he met Dir. Clayton in the street on the day after the publicaion of he article, but Mr. Clayton did not say that “it was a damned scurrilous article,” nor that it was like hitting a man when ho was down. He did not think that the subject of the article was spoken of at all on that occasion. He was -perfectly certain that he had not received tlie' letter of which he had seen the copy. Counsel here produced a file of letters, and plaintiff said that he had a bundle of letters “something like that.” ■- 'j' 1

On being sliown the original of the letter in this file from Mr. Clayton, plaintiff said that he still would not say that the letter, was there when he had the file. Ho missed the bundle of letters after lie left the office of the “Wairoa Guardian.” How they came by the bundle bo did not know, but it was in sonic funny way, as lie was usually careful. It was possible that he saw Mr. Geo. Grant, one of the directors, in his office on April 24. He believed the article was mentioned, but bo could not remember what was said. He may have said that it "was the duty of the paper to

take the matter up, as the hospital was -under bad management. Mr. Grant said something to the effect that the article was not warranted, hat he (witness) would not be able to prove what he had said, and that he had been made a cat’s ,paw of. The letters from tlie directors to him were all in his capacity as manager. He attended at a meeting of directors about 26th April, but ho did not know that Mr.' Clayton was asked to take down his (plaintiff’s) explanation. •-

Counsel then proceeded to read to witness a number of questions which had been asked him at.the meeting, and the answers.

Witness admitted that the answersread by counsel to the questions, as having been given by him, were in the main the purport of what he had said. At that time he said ho had written proofs of the truth of the statements in his articles; also that the article was not prompted by Dr. Collins. Some of the proofs lie bad - were confidential, arid lie could not -ovoal them at- that stage. He had dso said that he would not consent :o play one doctor off against another, -,ncl also that he had no intention to Allow the. articles any further. Dm- s 'ng the examination, he thought that he was told a. writ had been issued hy Dr. Morrison, and that therefore hat was the' reason he had been cal'od there. Ho considered that Dr. Morrison had made a mistake in his j treatment of the patient Foster by ' not having a proper sterilising plant, l'he hospital was not what was known is “surgically” clean. His proof for this statement was to be found n, information he had of the abnormally large number of. suppuration cases in the institution at. that time. Ho learnt that Foster was suppurating badly from a friend of Foster’s named Emanuel, who had been to see him. He. did not think he had any other proof for the statement in the article that Dr. Morrison had made a mistake in the treatment of Foster. Information regarding the, other cases of suppuration in the hospital was-ga ned by him from the inquiry : uto the Olsen case. He was not •sure if the inquiry did not reveal the fact that the patient was suffering from suppuration before she went into the hospital. The inquiry into the case of the patient East showed .that the patient died from amyloid disease, an aggravated form of suppuration. He did not know that this patient was suffering badly before being taken into the hospital. He discussed the question with Dr. Scott, who told him that the percentage of suppuration cases at the hospital was too high. Dr. Schumacher, on another occasion, told him a story similar in effect. He had the conversation with Dr. Schumacher in December, and doctor asked him not to make use of the information unless It came out in another way. He did not think there was a suppuration case in the hospital at that time. He also had a written report by Foster a. short- statement. This was elaborated afterwards, aiid signed by Foster. The elaborate and extended statement was not in his possession until after the article was written, and he had met the directors, and on second thoughts he did not think ho had anything in the way of proof at that time except Emanuel's verbal statement. DVhen he went to Blair and Sainsbury’s office on April 29th lie did not think he told Dir. Blair that all the doctors except Dr. Collins would support Dr. Morrison in his treatment of Foster. He said that Foster would say that lie had received more attention in the hospital after the dispute than before. Ho thought that he told Dir. Blair that he would get a written statement from Foster when he (Foster) got out of the hospital. He did not tell Dir. Blair and Dr. Collins would say that Foster should have been cured in a month, hut he may have said that with ordinary care Foster would have been convalescent in a month. He

might have saicT that Dr. Collins would support this latter statement. He did not remember bringing < the man Emanuel in to see Dir. Blair in connection, with the treatment of Foster by Dr. Dlorrison. If Mr. Blair now said that such an interview took place he (witness) had no doubt that it was so. At this time he was working eighteen hours out of twentyfour, and this would probably account for his lapses of memory. He remembered seeing Dir. Blair and giving him a rough • memorandum of something he could not prove. He knew that the justification of his remarks regarding the treatment of Foster was not important, but he was unable at that time to obtain proofs. He thought that there was no urgent necessity for-him to obtain the proofs he wanted. DVhen Dir. Blair came hack from Auckland he told him (witness) of the date of the proceedings. He went so far as to offer the directors an indemnity in the. case against all loss in any action for libel, brought by Dr. Dlorrison. He was instructed by letter on May 11th to insert the apology, hut diet not publish it on the following day, although told to do so. Instead of publishing the apology ho sent the directors a letter from Ins solicitor. After the. interview with Mr. Hallamore he inserted an apology which differed in two particulars from what lie-was told. DVhen he rang up Dir. Finn on received tho apology he knew that Dir. Clayton, chairman of directors, was also oil the. telephone, but he recognised the futility of consulting any one single director, and thought it safer to consult his solicitor. He first saw bis solicitor on the Sunday night after he got the apology for publication, but it was earlier than- 11 -p.m. when he got the apology for publication. Ho went to his solicitor’s house and afterwards saw Dir. Hallamore. He did not publish, tho apology because his solicitor advised him not to do so. Between 14th Dlay, the date of his dismissal, and 14th November he. had earned roughly only a £lO note. Re-examined by Mr. Johnston :The report (produced) was tlie one lie had got from Foster. It was signed by Foster, but was in, witness’ handwriting. Tho bundle of letters which had been produced by Mr. Sainsbury had been'kept in a leather case, unlocked, in his office at DVairoa. He did not understand how they had been brought into town.

Mr. Sainsbury explained that the bundles, of letter,s.had been handed to Mr. Clayton and Mr. Blair by the editor of the Wairpa paper, when, they were, at that placo at election tinie. Thisvconcluded the examination of this witness, who w'as - in the box for four hours and three-quarters. Ernest G. Matthews, secretary of the Hospital Trustees, called by Mr. Johnston, said that a man named

Richard Foster was admitted to the hospital on 24th May. Dir. Johnston applied to have Foster’s charts and a hospital book put in as evidence. Mr. Nolan objected, and His Honor ruled that they were not evidence of anything and held that they were inadmissible. . „

Carl H. Schumacher, medical practitioner, said that after Dr. Morrison resigned the appointment of medical superintendent at the hospital they had an honorary staff. Since then there had been a new sterilising plant installed, the water supply laid on, and a new operating table ordered. The fact was that nowadays there were lees cases of blood poisoning than there used to he. Everything should bo properly sterilised-before an opera, tkm. Counsel hero quoted extensively from medical works, and witness stated if they had ten per cent, ol suppuration in their general operations it would make them look round for the cause. The inference was when suppuration ensued that proper precaution had not been taken. It was of course impossible to say anything more, direct. A patient would not he able to be discharged after a simple operation for hernia'inside a month unless ho would be still under care. Some eases of hernia had to be kept in hospital for two and three months. Iu some cases suppuration would weaken the abdominal walls. To Dir. Nolan: He thought that Dr. Morrison, as far as he (witness) could see, was a careful surgeon. He could see nothing to criticise. Even the best of surgeons were liable to have a case of suppuration after an operation for hernia. This concluded the case for the plaintiff, subejet to counsel’s right to call Dr. Collins at a later stage. Dr. Collins, Dir. Johnston explained, had been called away to an operation in the country. Mr. Sainsbury claimed that the defendants were entitled to a non-suit oil the grounds, first as to libel, (1) That the publication was privileged, as it was made by the company in the legitimate defence of its interests and without malice; (2) that no evidence had been given that the plaintiff produced such proofs of the statements in tho article as would have enabled the company to. justify those 'statements; (3) that the words complained of are .riot defamatory, and that no evidence of- the publication of them in that sense had been given. As to the clause for wrongful dismissal, ho claimed a nonsuit on the grounds that sufficient causes for dismissal had been shown to exist, and that no evidence had been established to the contrary. Dir. Sainsbury, in arguing points of law, referred to several authorities, and read extracts v from them at length. Counsel said he had been unable to find any case on all fours with the present one/but he claimed that the statement had been made by the company in the reasonable interests of their defence. If Dr. Morrison had at tho time written a letter to the “Herald” stating that the contents of the article were untrue, and unjustifiable, the plaintiff, if ho had taken action, would not have been able to succeed as he could not have proved justification l of the statements. The motive of plaintiff in writing the atriclo had been, that Dr. Morrison, having made a mistake, was anxious to cover it up, and exclude another medical man. This motive would have utterly done away with any line of defence that could have been brought. He would submit that no evidence had been adduced to show that the apology -paragraph had been deemed to he defamatory to plaintiff. He submitted that there had not been two acts of gross disobedience which had jeopardised tho company s interest, and if necessary they would pin their faith to the question- of disobedience alone, and- he contended that sufficient evidence had been adduce from the plaintiff’s own witnesses to clearly show that these were acts of disobedience. Mr. Johnston claimed that a master should have n.o right to publish an apology and at the same time to libel ci servant. It had nob been tsliowu that plaintiff had done wrong in publishing the article, and until the facts contained in the artclo were proved to be untrue they must be taken as true by the Court. Plaintiff thought the statement would be a libel on him, and defendants knew it. His Honor said he could not see that the statement complained of was libellous at all. He would have thought that a child of ten would have understood the meaning of it. An editor in writing something imputed motives, which was certainly unwise, and then, the directors "of his paper had published an apology, saying that they-hoped no body would be done any harm bv the article. Personally he did not think that plaintiff had suffer-ed-5s worth of harm.

Mr. Johnston held that it Avas quite certain that to say, that the publication of ah apology could not be a libel on the editor of a noAvspapor Avas hot right. His Honor again suggested that ho could not see any libel at all on the •plaintiff in the apology. On the question of the points raised in respect of the causo for Avrongiul dis-

(missal, Dir. Johnston claimed that it would be necessary for the defendants to prove the evidence that had been tendered was false. The articles that plaintiff had been dismissed for writing— His Honor: He was not dismissed for writing any articles. He was dismissed for refusing to publish an apology that he was told by his employers to publish. Dir. Johnston said that if the article was a libel on plaintiff, it was not a reasonable and lawful command to publish it. After further argument, His .Honor said that he would give his decision on the points raised this morning, and take an opportunity in the meantto look, up the. authorities quoted.