SHIPPING.

Gisborne Times, Volume XXVII, Issue 2448, 12 March 1909, Page 6

SHIPPING.

' 3 ' ' J. j J2S.” ! A ‘ Supreme ..30 a.m. yesr Mr. Justice following judga James Attridge .■. Jolinston) v. the Company, Ltd. (Mr. with him Mr. K. Sains- , motion by counsel for tho to in an action claiming (a) ±,. .amages in respect of 'an alleged libc. , (b) £175 damages in respect of fhe alleged wrongful dismissal of tlie plaintiff from liis employment as _ the manager of the clolend hiits’ business and editor of the defendants’ newspaper. There is also a claim for £ls salary alleged to be due by the defendants to the plaintiff, but it is plain that this- claim cannot be maintained, because it is made in respect of a broken period of time for which no salary is payable under the agreement. If the plaintiff lias been wrongfully dismissed this claim is covered by the claim for damages for wrongful dismissal. If the defendant company was justified in dismissing the plaintiff, then the plaintiff cannot recover the salary in respect Of the broken period of his service. The facts as they appear from the plaintiff’s case may be briefly stated: On the 23rd of April, 1907, the plaintiff, as. editor of the defendant’s newspaper, published in that newspaper a leading article which is - beyond a doubt defamatory of Dr. Morrison, then the Medical Superintendent of the Gisborne Hospital, and i-s, a.s such, actionable unless u plea of justification could be established by evidence. On the 29th of the same month Dr. Morrison issued a writ out of this Court against the defendants, claiming £3OOO damages in respect of the defamatory matter so published. The defendants’ directors, after reasonable inquiry into the matter, satisfied themselves that they could not hope to prove the truth of such defamatory matter. At this trial the plaintiff liars endeavored to show that a plea of justification could have been established, but he has failed in so doing. The defendants’ directors, finding that they Could not justify the publication of the defamatory matter, the subject of tlie action by Dr. Morrison against the defendants, compromised that action upon terms that they should publish an apology in tlieir paper and in certain other newspapers. On Saturday, the 11th of May, the defendants’ directors iu writing instructed the plaintiff to publish, without comment, and as a leading - article in the Monday morning’s issue of their _ newspaper an apologv in tli6 following foi in i Tnc directors of the ‘Gisborne Times newspaper desire to fully and openly withdraw all such statements as have at ■any time appeared in the above newspaper in any way disparaging to Di. Morrison in his management of the ’Gisborne Hospital. They entirely withdraw the leading article which appeared la. the ‘Gisborne Times’ on April 23rd concerning a patient named Foster, and they apologise for its insertion. They are convinced after inquiry that the remarks there raa.de were unjustifiable in fact, and they" make this open avowal hoping that they may remove anv imputation that has been made on Dr. Morrison or his treatment of patients in the hospital. They sincerely hope that, by so doing, any harm done to Dr. Morrison may be speedily rectified. The directors wash to add that immediately after the publication of the article "they wrote to the editor extremely regretting the tone of the article.” "When this apology was sent to tho plaintiff, he was aware that 4 Dr. Morrison's action was pending, and he must necessarily have been aware the purpose for which the publication of trie'apology was required, and of its importance to the defendants. The plaintiff did not publish the apology in the issue of the paper (a morning paper) of the 13th Oi May, as instructed. In consequence the" defendants’ secretary, by direction of the_chairman of directors, wrote to the plaintiff on the 13th of May, inthis had not been done. (In*the same day the plain#. wrote to the defendants’ seeretaiy informing - him that the apology had not been published because Mr. Finn, his solicitor, advised him that be should not publish if and referred the directors to Mr. Finn for his reasons. On the same*day aho* the defendants’ secretary, under instructions from the directors, wrote to the plaintiff forwarding a copy ol a resolution -passed by the directors, •and requiring him to attend to t“ ie "l" structions therein contained, Jdie resolution was as follows: — that impel stive instructions be sent to the editor, Mr J A. Connell, demanding that the apology forwarded to him on Saturday, the 11th instant.: be- inserted in. tomorrow’s (Tuesday’s) issue of the company’s paper: but it- having been men- - tioned that Mr. Connell had objected 'to the last sentence m the apology, the directors, with the view to meet his objection, direct that the apology be gubfished omitting the avoids The direc -iJors wish to add that immediately aftci publication of the article they wrote to the editor extremely regretting the + e -flip, article’ On the same day aho C Finn the plaintiff’s solicitor, on behalf of the plaintiff, wrote to the -defendants’ Chairman of Directors claiming that the article of the 23id -'‘ April was published on a privileged and without malice but not ■Jnewestino- that the plaintiff could tlie”truth of tho defamatory matter This letter concluded: ‘He considers that he has performed his duty it publishing the article. You now desire him to publish m ‘The Gisborne Times’ a. statement which he consider most .personal and scandalous libel on himself. He declines to be a- party tho publication of such a statement. On tho 14th of May the plaintiff published in the defendants’ newspaper, '•-tween notes and quotations, and prefaced by the words, ‘‘The following i ias been forwarded to us by the Directors with instructions that it shall be published,” a mutilated and abbreviated n., m of apology. On the samp day the defendants’ directors, by resolution, noajMl “y hathe'fornSlt to the plaint.it M ttoVtl. of May om*,n £ the l~t K3So?*taS that" certain words in "ter i nnrl l-i c* r"l rv Q. made were -unjustifiable >« “ I, ■i . treatment of patients n the hospital are defamatory to the p.amtifE. ■ v+w statement of claim an innuendo is - tlieseiworcjs,but »o_J^emp£

x in the above circumstances he lias , c 'cn wrongfully dismissed, and is entitled to receive damages in respect or such wrongful dismissal. In the statement of facts counsel for _ the defendants claim that the plaintiff , should bo non-suited. As to the alleged libel the grounds of nonsuit urged are. (1) That the publication was privileged, in that it was made by the defendants in defence of their interests and without malice; (2) That no evidence, has been given that the plaintiff advanced to the defendants such proofs of the statements of the article of the 23rd of April as would have enabled the defendants to justify such statements; (3) That the words in themselves are not defamatory so that there is no evidence to support the innuendo. In my opinion the words are not defamatory. A perfectly honest and careful editor of a newspaper may be led into publishing, especially upon such a subject a-s hospital management.matters which may prove to be unjustifiable. There is no suggestion in the. alleged likel that this was not the case—l do not think that any reasonable person would read the apology as reflecting in any way upon tlilie plaintiff. Further, "if tho words could be read in a defamatory sense, if is quite clear to mo that thc-y were published upon a privileged occasion. Tho defendants editor-manager had published defamatory matter concerning Dr. Morrison. The defendants’ directors found, alter reasonable inquiry,that they could not prove the truth" of such defamatory matter. Thereupon there arose in the defendants a duty to Dr. Morrison to endeavor to undo' or to minimise the wrong done to him by them, through the agency of their servant, the plaintiff. Further, the directors clearly had a right, upon the ground of common interest, to make, any communication they pleased upon the matter to Dr Morrison, so long as that communication was made without express malice to the plaintiff. The apology, considered as addressed to Dr Morrison, was therefore privileged. But the wrong done to Dr. Morrison was by the publication of defamatory matter in a public newspaper, that publication as between the defendants and the plaintiff was brought about by the act of the plaintiff. The wrong done to Dr Morrison could be removed or minimised cnlv by publication of t-lie apology ill a similar way. The plaintiff, oven if quite innocently, having been the means of publishing defamatory matter, for which the defendants were liable to the person defamed, could not complain if in the discharge of the defendants’ duty to that person,' in undoing tho wrong brought about by the plaintiff’s action, they incidentally reflected upon his own conduct, .provided they did not exceed what was necessary for the discharge of that duty and they acted without malice. There may be no case precisely in point, but the principle upon which, in the case of Laughton v. Bishop of Sodor and Man, 1t.1t., 4p, c--495, the publication in a newspaer of defamatory matter published in selfdefence was held privileged, supports the view which I take. I feel no doubt—l have never felt any doubt since I first read the pleading—that the alleged libel in this action was published upon a privileged. occasion. It is not suggested that the defendants were actuated by malice—indeed the plaintiff, himself states in the witnessbox: that, asr far as ho knows he. has al T ways been, and still is. on .good terms with the directors. Then, as to the claim for damages for wrongful dismissal, counsel for the defendants claims that the plaintiff must be nonsuited, as the evidence advanced in the plaintiff’s case has established that lie was guilty of wilful disobedience, justifying his instant- dismissal. In Corry v. (Houston, 7 Gazette L.R., eh. 213 at page 237, 242, I analysed the cases upon this branch of the law to the best of my ability. The judgment of the Court in that case was vacated by the Judicial Committee. Clouston and Co. v. Corry (1906), A.C. 122, although curiously enough tlieir Lordships held- that the judgment vacated was correct. There is nothing in the judgment of the Judicial Committee to lead me. to suppose that I was wrong in the conclusions of law at which I arrived in that case. Among these conclusions is this—that a single deliberate act of disobedience of a particular wd" or given in a particular matter, in suclT m a finer ■?* tC indicate an intention to defy the authority of the master, warrants the instant dismissal of tlie =erv.ant. There can be no doubt that the plaintiff’s act of disobedience in this case was an act of that character. The plaintiff must, therefore, lie nonsuited in respect of all three of his causes of action, with costs according to the scale. I certify for the allowance for second counsel according to the scale.® I am glad t-o be able to add that although it is clear in my opinion tliafc tlie plaintiff has completely misunderstood his rights,, with results unfortunate to himself,, nothing has _ appeared in the course ol the trial winch in any way reflects upon his character, or which should- preclude his employment in his vocation.” CLAIM FOR RENT AND INTEREST. HOWIE AND OTHERS v. BARRY. The next case was that in which Fanny Rose Howie and others (successors of Herewaka Poata, deceased) proceeded against David John Barry to recover £192 16s 6d for rent and interest alleged to be duo. Mr L. T. Burnard (instructed by Mr W. Sievwright) appeared for the plaintiffs and Mr J. W. Nolan with him Mr G. Stock, represented the defendants. During his opening, Mr Burnard stated that plaintiffs liad abandoned one item of tlieir claim, that for £2l co bcl. Robert Noble Jones, District Land Registrar, called by Mr Burnard, produced the title of the Mangahawun block and the various deeds of tlie title. The last transfer of the block was from Porter and Parker to Davu.l John Barry, dated 27tli Maw> lybv > and registered 30th May, 190/, Theio was also a succession order No. 2027, registered March Btli, 1909, to Heiewaka Poata. To Mr Nolan: Two minors were mentioned in the succession order. Mr Nolan said that it would help to shorten the proceedings if an amended defence was put in to the effect that plaintiffs were not registered under the Lands Transfer Act as proprietors of any block. William Sievwnght said that the father of the plaintiffs was Col. Porter He could not say . that any rent had been .paid to him or to any one else. The letter (produced) was one written in -July 1908 to defendant; demanding rent, and the replv (pip-. diiced) to that letter referred him to the defendant’s solicitor. On. March 26th 1908, lie wrote again to Messrs Nolan and Sheet and received a reply that they were writing to Col. Forcer no tlie matter. He threatened to take action, and Mr Nolanpromised to pay the money into Court and .leave Colonel Porter to fight it out. Defendants

To Mr. Nolan: He understood that lie was acting for-all the children and not Mrs Howie alone. Ho did not know that Colonel Porter was acting'as, agent for the children. Ho gave instructions to Messrs Findlay and Daljoiel to notify Colonel Porter that he was not to in any way act as agent for Mrs Howie. He did not -give notice regarding the other children. Col. Porter did not show him any authority to act on behalf of the children, but sent him a copy of a document which ho said was a copy of a document giving him that authorisation. Counsel here produced the original authority signed liv all the children except Mrs Howie, who, he said, had at no time signed an authority. Continuing witness said that Col. Porter was .always open with him but did not tell him that large sums of money were clue to him out of the rents on account of sums advanced by him. Fanny Rose Howie said that she had not received any rent from defendant for the Te Puka block in question, nor had any other person done so on her behalf. To Mr Nolan: She knew that Col. Porter had been collecting rents. She never discussed the matter with her father, and the notice sent by Mr Sievwright was the first objection made by her. She had had considerable correspondence with her father as to the settlement of her mother’s affairs, but there was no reference made to her ny her father of h;‘s having advanced her sums of money. Sho received large sums from her father when they were in London, but she did not look upon them as loans but as gifts. She got cheques for £47 10s, £SO, and £3O, 4 cheques for £lO, and some for £5. Her father also paid a dressmaker, in 'London £l9, and £5 to her landlord. .Sheknew that her mother had loft debts, but she did not know that her father was paying off the debts. Ada Dalrymplc, one of the plaintiffs, also gave evidence that she. had received no rents for the Te Puha block. She d : d not know that anyone else had done so on her behalf. To Mr Nolan: After her mother's death she signed an authority for her father to collect rents and pay certain debts.

This concluded the case for the plaintiffs as Mr Barry was not present. Mr ,Nolan claimed that there was no case for him to answer. The only thing that the plaintiff, Mrs. Howie, could possibly recover was her share of the rent from March 26th, 1906, when the authority she had given to Co’onel Porter to collect the rents was revoked. There was no evidence to show in what way the rent was apportioned between the claimants. Some discussion ensued on the proportion of the rent to which she was entitled. Mr Nolan contended that the trustees mentioned were not registered, and not interested in the block.

Mr Barnard pointed out that it was shown in the statement of claim that each of the plaintiffs was entitled to a one-ninth share. -He submitted that it was not necessary for the trustees to be registered, iso that the action might be maintained. Counsel proceeded to quote authorities in support of his contention, and further argument ensued.

Air Nolan claimed that plaintiff had no right to make, any claim under the Lands Transfer Act as they were unknown and then unregistered. When the writ was issued this was so and he held that his opinion that plaintiffs had no status was a correct one. His Honor said that if Air Nolan was right it would dispose .of the whole action.

Air Nolan said that it had not been proved that the plaintiffs were each entitled to one-ninth chare. It was merely shown in the statement of claim and there was no. proof. His Honor reserved his decision on the non-suit points raised regarding the registration, but said that it would be understood that on the other points plaintiffs, with' the exception of Airs ITowie, would bo non-suited. NATIVE CASES. The order of the cases set down for hearing after lunch was that the two separate actions by Alicnata Te Alairo and Titoko AVliaanga, of Alaliia, against /uHjniii pouglais Lysnar, of Gisborne. When the Cases were called, Air. L. T. Burnard asked that they be held over until to-day, as the defendant was ill, and in bed. suffering fdom tonsilitis. He understood that defendant would be able to appear to-day. Mr. Finn mentioned that tho suggestion was most inconvenient, as lie bad all bis witnesses ready, and they had been waiting for some days. His Honor suggested that Air. Burnard could obtain an adjournment for bis client on paying the solicitor’s fee and costs for the day. Counsel for the defence accepteci the suggestion, agreeing to pay solicitor’s fees, £3 3s, and witnesses’ expenses for the- day, in both cases. AHENATA TE AIAIItE v. EAST COAST COMMISSIONER.

The next c-asc called was that m which Alienata To Maire, of Alaliia, proceeded against the East Coast Commissioner (Thomas Alexander Coleman) : (1) Claim for £lls 17s and interest at 6 per cent, from March 20, 1895 ; (2) alternately a declaratory iud"merit or order under the Deelaiatorv Judgments Act, 1908. Mr. H. J. Finn appeared for the plaintiff, and Air. J. W. Nolan for the defendant. The facts in the. pleadings were admitted, and counsel proceeded to argue on the legal points. Air. Finn said that it was maintained by defendant that lie had not got the authority to pay the money, which was a portion, of the purchase money ot the Alaliia Native lands. The East Coast Commissioner had taken over tho responsibilies of the AVi Pore Trust, which bad been assumed by the East Coast Trust Board, and counsel contended that the Commissioner should respect the responsibilities existing under the decree. The land had been ‘-old under decree of the A alidation Court, and only £6OO or £7OO of tho purchase money had been paid. ~Mr Nolan contended that tho buprc'me Court could not interfere in tho matter, as the; Validation Court had exclusive' jurisdiction. .His Honor said that the Commissioner was not liable unless there, bad been some special legislation throwing the responsibilities of the Carroll-AY i Pere Trust on to him. ... Air. Finn said that the liabilities of tho Carroll-AVi Per© Trust had been taken over by the East Coast Trust Board, and from that Board by, tho Commissioner. W • Hits,Honor remarked that the money was gone before defendant was. Commissioner. , ... ■ %:■

Mr. Finn asked who was to pay the money owing to plaintiffs. His Honor replied that ho could not say. There was no doubt that, the parties had a grievance, but lie could not adjust it. The suit would have to bo dismissed,withcosts ..according; to

which Thomas William Porter, C. 8., of Gisborne, proceeded against John Coleman and others for an originating summons for tho direction of the Court in connection with the settlement of the estate of Herewaka Poata, deceased. ' , Mr. C. A. dc-Lautour appeared tor the plaintiff, and Mr. L. T. Burnard for the defendants other than John Coleman. Lengthy legal argument ensued, botn counsel quoting authorities. His Honor reserved his judgment. AN APPEAL CASE.

The next case was that in which H. J. Peacock© and Co. appealed against a decision of tho Stipendiary Magistrate in the case against John A\ nliam Williams. , , Mr. L. D. Burnard appeared on behalf of the appellants, and respondent was represented by Mr. J. W. Nolan (instructed by Mr. E. H. Mann). Mr. Burnard said that lie real question at issue was the definition of a hill of exchange. He quoted autlioiities at length in support of his contention that the document handed to appellants by respondent was negotiable as a bill of exchange. . Air Nolan took the opposite view, and ho also quoted authorities. His Honor Raid he did not . think there was any doubt on the subject oi whether the document was a u:li oi exchange or not. He did not tnink that it was. but as it had been considered worth bringing an action about it and subsequently an appeal, be would reserve his judgment on it.