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of authorities on the question whether it is in every
case necessary to aver facts and circumstances in
order to justify an issue of malice, and I was asked
to hold that in this case the bare averment that the
language was used maliciously was sufficient. It is,
I think, enough for me to say that in every case to
which I was referred in which it was held necessary
to include malice in the issue, and in which an issue
had been allowed, it was only on averments of facts
and circumstances relevant to instruct antecedent
malice, and I see nothing in the present case to justify
me in departing from this practice. I am accordingly
of opinion that the pursuer's averments are irrelevant
to support the first issue.

Rae v.

1928.

of which can be sufficiently understood from the defenders have charged themselves have been 1st Div. the judges' opinions, infra. undertaken by them voluntarily, but they are disOn 5th April 1923 the Lord Ordinary (Black-charged in the public interest and in my opinion are Royal burn) disallowed the issues and dismissed the entitled to full recognition (see Wallace James v. Scottish Baird, 1916 S.C. (H.L.) 108). The occasion being Society for privileged, the words here used, even if in excess of PrevenLord Blackburn.-The pursuer in this action is a what the exigencies of the occasion demanded, are tion of wire worker who resides in Musselburgh, and in this not in themselves evidence of express malice (Lyal v. Cruelty to action he sues The Royal Scottish Society for Pre- Henderson, 1916 S.C. (H.L.) 167, per Lord Chancellor Children. vention of Cruelty to Children for damages for alleged Buckmaster at p. 175), and there are no averments on November 30, slander. Three separate issues are proposed by the record in connection with this alleged slander of facts pursuer, and the defenders plead that they should all and circumstances from which malice might be be refused on the ground of relevancy. The circum-inferred. I was favoured with an exhaustive review stances which give rise to the action are that the wife of the pursuer had left him on 25th February 1922 and gone to reside in Glasgow, taking with her the infant child of the marriage. At this stage of the case I assume that the wife was in the wrong in acting as she did and that the pursuer did his best to persuade her to return. But I also assume that the pursuer declined to make any contribution of money for the support of the child in Glasgow. An averment by the defenders in Answer 3 that this was the fact is not denied, and the pursuer only avers on record that he was willing to receive the child in his own home at Musselburgh. A complaint was made to the defenders in Glasgow that the pursuer was not providing for his child, and an officer of the name of Murray, The second issue refers to a slander alleged to have employed by the defenders, was sent on 6th June been uttered by another of the defenders' officers, 1922 to make enquiries from the pursuer at his house | Allan Docherty, on the 17th June 1922, in the in Musselburgh. It was on the occasion of this visit defenders' offices at Montrose Street, Glasgow. In that the first slander complained of is alleged to have Condescendence 4 the pursuer avers that after the been uttered. The pursuer avers (Condescendence interview with Murray he wrote to the defenders 3) that Murray said to him, "I have come to see at Glasgow explaining the circumstances and rewhat provision you are going to make for the child questing them to arrange for his wife and child being you are neglecting in Glasgow," and he innuendoes at their office in Glasgow on Saturday the 17th in this as meaning that he was guilty of the criminal order that he might take them home with him. neglect of his said child." This refers to the pro- This averment is denied by the defenders, and at visions of the Children Act, 1908, which provides the debate pursuer's counsel referred to and read by section 12 (1) that if any person who has the the letter produced in process which it was said had custody of a child wilfully neglects or abandons it been sent by the pursuer to the defenders. Assuming he shall be guilty of a misdemeanour punishable by that this letter may now be dealt with as forming fine or imprisonment, and by section 12 (2) that a part of the pursuer's case on the relevancy, it appears person may be convicted of an offence under this to me that it only partially supports his averments section notwithstanding that actual suffering or and provides ample justification for the defenders injury to health has been obviated by the action of going on with their enquiry. In the opening sentence another. It is further provided by section 38 (2) it states: "I am quite prepared to have the child that any person who is the parent or legal guardian home here, as I have a good home for him, as I know of a child shall be presumed to have the custody, and he won't be properly looked after where he is at present, that as between father and mother the father shall and if she won't allow him to come here I will refuse not be presumed to have ceased to have the custody to support him while he is in Glasgow, because she has of the child by reason only that he does not reside told me in front of my people that I am not the father with the mother and child. of her child." The averments of what passed at this meeting are contained in Condescendence 5, where it is averred that The said servant, notwithstanding the explanations and contradiction previously given by the pursuer, repeated said accusation that the pursuer was neglecting his child." The actual words used by Allan Docherty are not given, there is no innuendo as to their meaning, and it is not averred that the previous explanation and contradiction given by the pursuer to Murray verbally, or to the defenders in writing, had ever been communicated to him. For these reasons alone I should have held the averments irrelevant to support an issue of slander, but it is sufficient to say that in my opinion this occasion was also privileged, and that there are no averments of facts and circum

I think it is very doubtful whether the words here complained of can fairly bear the innuendo proposed to be put upon them, but it is unnecessary to decide this definitely as I am of opinion that the occasion on which they were uttered was a privileged one. This would appear to have been recognised by the pursuer, who has inserted malice in all of his proposed issues although it was stated at the bar that no such admission was intended. I entertain no doubt, however, that enquiries made by the defenders in the discharge of their duties are made under circumstances which preclude the presumption of malice being the actuating motive, and accordingly that the occasion on which such enquiries are made is privileged. It may be that the duties with which

66

1ST DIV. stances from which antecedent malice could be inferred.

Rae v.

Society for

November 30, 1928.

66

The third issue relates to the fact that on or about Royal the same date the defenders lodged with the ProScottish curator-Fiscal a written information to the effect Preven- that the pursuer had been guilty of ill-treating and tion of neglecting his child, etc., contrary to the Children Cruelty to Act, 1908, section 12. The issue sets out that this Children. was done "falsely, calumniously" (this latter word was inserted in the issue by request of pursuer's counsel at the debate), maliciously, and without probable cause." In my opinion the letter founded on by the pursuer in itself provided sufficient probable cause for the action taken by the defenders, and their action in reporting the matter to the Fiscal is also protected by privilege. The only averment of facts and circumstances which suggests antecedent malice is contained in Condescendence 10, where it is said that the defenders "knew, or ought to have known, that the pretended necessity of aliment for the child was a pretext on the part of his wife to obtain money for herself. In my opinion the defenders are entitled to have this averment construed as amounting to no more than that they ought to have known of this scheme on the part of the wife, and this does not appear to me to be sufficient to instruct ante

cedent malice.

66

I shall accordingly refuse all three issues.

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The pursuer reclaimed and the case was heard before the First Division on 29th and 30th November 1923.

66

Argued for the Pursuer : The slanders were uttered by servants of the defenders acting within the scope of their duty, and the defenders were liable in reparation for them (Finburgh v. Moss' Empires Ltd., 1908 S.C. 928; Ingram v. Russell, 1893, 20 R. 771, Lord President Robertson at p. 776, and Lord M'Laren at p. 777; Percy v. Glasgow Corporation, 1922 S.C. (H.L.) 144, Viscount Haldane L.C. at p. 151, and Viscount Finlay at p. 152). The word neglect " bore the innuendo which the pursuer had put upon it (Children Act, 1908 (8 Edw. VII. cap. 67), section 12 (1) and 38 (2); Sexton v. Ritchie, 1890, 17 R. 680, Lord President Inglis' dictum, rubric and p. 685; James v. Baird, 1916 S.C. (H.L.) 158, Lord Buckmaster L.C. at p. 161, quoting Lord Macnaghten (in Jenoure v. Delmege, [1891] A.C. 73, at p. 77), and Lord Kinnear at p. 165, reaffirming the dictum last cited). The occasions libelled were not privileged, but even if they were the pursuer had relevantly averred malice and want of probable cause (Ingram v. Russell, cit.; Rae v. Linton, 1875, 2 R. 669; Denholm v. Thomson, 1880, 8 R. 31; Brown v. Fraser, 1906, 8 F. 1000; Macdonald v. M'Coll, 1901, 3 F. 1082, Lord President Balfour at p. 1084; Buchanan v. Corporation of Glasgow, 1905, 7 F. 1001; Suzor v. M'Lachlan, 1914 S.C. 306, Lord President Strathclyde at p. 312).

Argued for the Defenders: There nothing in the pleadings to shew that

was the

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defenders' servants were acting within the scope of their duty. Their duties ought to have been specifically averred (Riddell v. Glasgow Corporation, 1910 S.C. 693, 1911 S.C. (H.L.) 35; Cameron v. Yeats, 1899, 1 F. 456, Lord Justice-Clerk Macdonald at p. 463; Eprile v. Caledonian Railway Co., 1898, 6 S.L.T. 65). It was not reasonable to put a criminal innuendo upon the word neglect. Further, the whole subjects of complaint by the pursuer were truly one, and if the third issue (on giving wrongous information) was refused, issues ought not to be allowed on the other parts of the res gesta (Chalmers v. Barclay, Perkins & Co. Ltd., 1912 S.C. 521; Hassan v. Paterson, 1885, 12 R. 1164; Ferguson v. Colquhoun, 1862, 24 D. 1428). The occasion of the alleged wrongous information to the Procurator-Fiscal privileged. The Society was not in the same position as a private individual (Children Act, 1908 (8 Edw. VII. cap. 67), section 132 (20)); Baird, 1916 S.C. (H.L.) 158; Lightbody v. Jenoure v. Delmege, [1891] A.C. 73; James v. Gordon, 1882, 9 R. 934; Ingram v. Russell, 1893, 20 R. 771, Lord President Robertson at p. 777; Lyal v. Henderson, 1916 S.C. (H.L.) 167). A general averment of malice was not enough, and there were no facts set forth by the pursuer here from which any jury could infer malice (Mills v. Kelvin & James White Ltd., 1913 S.C. 521, Lord President Dunedin at p. 532).

was

On 30th November 1923 the Court adhered.

The Lord President (Clyde).—The questions presented by this reclaiming note are examples of the difficulty which besets the prosecution of philanthropic objects such as those to which the defenders' Society is devoted, when the means adopted involve the interference of its officials in the private affairs of third parties.

The pursuer proposes three issues-two of slander, and one of wrongous complaint to the Procurator-Fiscal-based on Condescendences 3, 5, and 7 respectively.

According to the pursuer, his wife had left him early in 1922, and was living with her mother in Glasgow along with the only child of their marriage, and persistently refused either to return to him or to deliver the child to his care. While this state of matters continued, one of the defenders' servants called upon him at his house in Musselburgh and said to him in the presence of his mother and brother: I have come to see what provision you are going to make for the child you are neglecting in Glasgow." Taking the pursuer's account of the interview as correct-which of course we are bound to do at this stage of the case-this does not strike one as a tactful

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Rae v.

Preven

tion of

1923.

introduction to the discussion of a delicate is necessary to explain-anticipating for a 1st Div. subject. But the pursuer goes on to aver moment that this interview took place on that he explained the position in which he the same day as the third incident of which Royal and his wife and child were at the time, and the pursuer complains, namely, the lodging Scottish that the interview ended by a suggestion on with the Procurator-Fiscal of a criminal infor- Society for the part of the defenders' servant that the mation against him. The pursuer's case about pursuer should go to Glasgow and get the this interview is that the same charge of Cruelty to child. Now, the pursuer does not maintain neglect which is innuendoed as before was Children. that the statement made by the defenders' repeated. The innuendo-supposing it to be November 30, servant to the effect that he was neglecting a reasonable one in the circumstances averred his child in Glasgow was in itself slanderous. by the pursuer with regard to this second interBut he seeks to put upon it this innuendo: view-infers the imputation to the pursuer of meaning thereby that the pursuer was guilty a crime; and this imputation the pursuer of the criminal neglect of his child." So far describes (in article 5 of his condescendence) as the words actually used go, I do not think as a threat"—a threat, that is to say, that any reasonable person could draw any imputa- steps would be taken to bring the pursuer's tion of criminal conduct from them; and this conduct to the notice of the criminal authorities. view is strongly supported by the circumstances The pursuer is entitled to have all this assumed of the interview in the course of which they in his favour. But his case is (article 7 of his were used, as those circumstances are averred condescendence) that information was lodged by the pursuer. For the whole outcome of by the defenders with the Procurator-Fiscal on the interview was a suggestion that the pursuer the same day, charging him with an offence should see his wife in Glasgow and get the under section 12 of the Children Act, 1908 child from her; and while no doubt the implica- (8 Edw. VII. cap. 67). That being so, it would tion was that in allowing the child to be kept be impossible to approve of both the second away from him the pursuer was failing to and the third issues. A charge of crime perform his parental duty as the child's proper (including a threat of criminal information), custodier, this seems to me to be remote from followed by the actual lodging of the criminal any suggestion that the pursuer had rendered information (which I assume to be wrongous), himself amenable to the criminal law. dò not constitute two separate wrongs. They are only two stages in the commission of one wrong. In this view the case is indistinguishable from a number of decided cases of which Chalmers v. Barclay, Perkins & Co. (1912 S.C. 521) is the most recent. In that case an interval of a couple of months intervened between the threat and the information. case in so far a fortiori that an interval of only an hour or two intervened. In this view, the second issue must stand or fall with the third. But it may still be that article 5 of the pursuer's condescendence contains some independent matter of complaint-independent, that is, of an intimation, or threat, of intention to lodge a criminal information with the Procurator-Fiscal. When article 5 is examined, it is found to contain a very distinct statement on the pursuer's part of what the defenders' servants said and did. The pursuer says that

This

I confess that I was at first moved by the view Mr Garrett presented, that the incidents which form the subject of the second and third issues might be used to throw light upon the true character of the incident which forms the subject of the first. I think this view might have been taken but for the circumstance that the pursuer's own account of the first incident cuts it so completely off from what occurred eleven days later. As I have said, an accusation of neglect of parental duty, the outcome of which is a suggestion that the pursuer should go to Glasgow and see his wife and, in that way, try to mend the breach in his domestic life and bring the child home with him, is far from any idea of a charge of conduct inferring crime. The Lord Ordinary rested his refusal of the first issue on privilege. I prefer to base mine on the absence of any relevant averment of slander; and it is not therefore necessary for" they insisted in a demand that the pursuer me to consider the question of privilege.

The next incident, on which the second issue is founded, occurred eleven days later, and took place in the defenders' Glasgow office. The pursuer alleges that he had written to the defenders, requesting them to arrange for his wife and child being at the office on the day in question, with a view to his taking them both home to Musselburgh. This was in pursuance of the suggestion made by the defenders' servant at the first interview. It

should pay aliment," that they told him he
"had been given sufficient time," and that
they "would make him pay for both wife and
child." Finally, the pursuer says that this
was done by the defenders "in support of
the pursuer's wife and in furthering her policy
of remaining in desertion of the pursuer.'
It was matter of admission by the pursuer
at the bar that he was not in fact contributing
anything to the support of either wife or child.
This admission was properly made, for, although

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Rae v.

Preven

1ST DIV. the pursuer does not expressly make it on ing." These are averments of want of probable record, it is implied in his statement in article cause, but it is well settled that absence of Royal 10 (at the end) that the necessity for aliment probable cause may in itself be proof of malice. Scottish was only a "pretended" one. Apart from the The question is, Are they sufficient to justify the Society for alleged threat of criminal information, there approval of an issue? is no issuable matter in all this, however wrong Cruelty to or imprudent it may have been for the Society's Children. servants to take sides with the wife-if they November 30, did take sides with her in the domestic differences which had arisen between the pursuer and her.

tion of

1923.

The argument for the pursuer was that, seeing the defenders were fully aware of the separation between the pursuer and his wife, and that the prosecution failed as soon as it was proved that the separation was caused by the wife's refusal to live with him, the defenders had-and knew that they had-no probable cause for informing the ProcuratorFiscal of any alleged neglect on the pursuer's part under section 12 of the Children Act, 1908 (8 Edw. VII. cap. 67). But, assuming the truth of all the pursuer's statements, it by no means follows that the defenders had no probable cause for the information laid by them.

any opinion with regard to the precise meaning of the involved provisions of section 12 (1) of the Act (particularly the latter part thereof), and of the relative interpretation clause, section 38 (2) (particularly the latter half of the first paragraph). But it is impossible to read these sweeping enactments without perceiving that the defenders had at any rate a probable cause-whether it should turn out to be successful or not-for charging the pursuer with

On the third issue (the most serious of the three) I have felt the case to present some difficulty. The defenders' Society lodged a criminal information, and in the prosecution which followed the pursuer was found not guilty. The pursuer says in article 9 of his condescendence that "in reply to Sheriff Lyell the said witness [namely the pursuer's wife] stated that it was she who had left pursuer I have not the slightest intention of expressing and not pursuer who had left her. The pursuer was found not guilty." Now, there is no doubt that, in lodging the information, the defenders were protected by the privilege enjoyed by persons who act in accordance with a sense of duty in informing the criminal authority of a matter proper for its cognizance. But the pursuer pleads malice and want of probable cause, and founds on two averments-one at the beginning of article 7 and the other in article 10. No point was made on the aver-neglect likely to cause unnecessary suffering ments regarding a final interview between the pursuer and two other servants of the defenders (five days after the criminal information was lodged, and two days after the issue of a warrant for the pursuer's arrest by the Sheriff Court of Lanarkshire), at which the pursuer says the servants in question threatened him with arrest. I mention this not because I think any useful point could have been made on it, but lest it should be supposed that it had been overlooked. The statement in article 7 is in these terms: "The defenders knew that the pursuer's child was well nourished and cared for, and, further, that the pursuer had done all that he could to induce his wife to return to him and to obtain possession of the child and maintain it." The statement in article 10, so far as not consisting in a repetition of what has been quoted from article 7, is as follows: The defenders. knew that the pursuer Lord Skerrington.-Your Lordship has so was innocent of any ill-treatment or neglect of clearly and so fully expressed my views in regard his child, but that he had been wrongfully to each of the three issues proposed by the deprived of its possession and custody. pursuer as to make any further statement by They further knew or ought to have known me unnecessary. I do not, however, think that the pretended necessity for aliment for that the case is one of difficulty in spite of the the said child was a pretext on the part of the able argument addressed to us by Mr Garrett. pursuer's wife for obtaining money for herself As regards the innuendo suggested by the to enable her to continue in resistance to the pursuer in his first issue, the Court ought, in pursuer's demand for her return to him and my opinion, to resist the attempts of litigants for delivery of the child into his care and keep-in slander actions to seize possession of ordinary

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or injury by failing to provide food and lodging, even though no actual (but only constructive) injury was a likely result of such failure, and even though the child was actually in the custody of a wife who was residing apart from him. There is nothing that I know of to prevent the probability of a cause from being dependent, wholly or partly, upon a difficult question of statutory construction. As I have said already, it was matter of admission at the bar that the pursuer was not in fact supporting the child or in any way contributing to its support.

In these circumstances, although I am dis- · posed to feel some sympathy with the pursuer's case-for on his own shewing at least he has been hardly used-I think we should affirm the Lord Ordinary's interlocutor refusing the issues proposed.

and innocent words of the English language in order to impose upon them a sinister meaning in the absence of an averment of special circumstances which might entitle a jury to adopt such a construction.

Lord Cullen.-I concur.

Lord Sands.-I agree. This case turns on the word "neglect.' neglect." Now, to use such a word in the presence of strangers to the facts of the case might be one thing; to use it in the presence of those who presumably know all the facts is another. In the former case it might suggest an allegation of something sinister; but in the latter it is the mere expression of the opinion of the party uttering the words upon the facts which are known to both parties. I can quite conceive that a word, such as the word "steal" or "thief," might be so odious that, even if applied to known facts, it might be regarded as slanderous. But I should have great difficulty in holding that the use of the word "neglect as applied to facts known to both parties is a slander. I am of opinion that the first issue fails. For the reasons that your Lordship has indicated, I think the second issue also falls to be disallowed.

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In regard to the third issue, these cases are sometimes argued as if the person who gives information to the proper authority in regard to a suspected offence was in the position of the English prosecutor who follows the matter out and insists on a conviction. I take the giving of the information to be no more than the lodging of the information with the person who is the proper authority, with a suggestion that he should investigate the matter, and, if he finds that there are sufficient grounds, that he, on his own responsibility, should prosecute. In the present case the slander is said to consist in the statement that the pursuer failed to provide his child with adequate food, clothing, and bedding. As a matter of fact he was not providing his child with food, clothing, or bedding; there might be an explanation of this, and, when that explanation was given, there might be a difference of opinion with regard to the legal effect under statutory law. I do not think absence of probable cause can be pleaded when what occurred was really that information such as is here in question was put before the proper authority with the remark, We think you should look into this." I accordingly think this issue ought also to be disallowed.

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Counsel for Pursuer and Reclaimer, Gentles, K.C., Garrett; Agent, John Anderson, Solicitor. -Counsel for Defenders and Respondents, Watt, K.C., Hunter; Agent, Harold Alexander, W.S.

M. D.

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Reparation Negligence

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Dangerous premises Contributory negligence-Volenti non fit injuria— Relevancy-Averments by wife of a tenant of accident to her through defect in pavement of common court behind the premises let-Averments that the defect was "obvious" and had been "dangerous for " some years Implied admission that the pursuer had lived in the premises for many years Held that the averments were irrelevant to infer liability against the owners of the property on the ground that the averments themselves shewed that the pursuer had accepted the riskOpinions reserved, per Lords Skerrington and Sands, as to the effect upon the law of Scotland of the case of Fairman v. Perpetual Investment Building Society, [1923] A.C. 74.—That case followed, per Lord Cullen.

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COND. 2. There are two tenements in the said

property belonging to the defenders and two closes, both running through from the street to a court or space of ground at the back of the said two tenements, there being no division in the back court between the ground applicable to either tenement.

COND. 3. On or about 7th March 1923 the

pursuer was crossing the said back court from the close No. 267 to her own close No. 263 Main Street aforesaid, when her foot went into a saucer-shaped hole or depression in the part of the back court near to and belonging to the tenement No. 267 Main Street aforesaid, and she fell down, hurting herself severely.

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COND. 6. The said accident which the pursuer met with was due to the fault of the defenders or of those for whom the defenders are responsible, and in particular-the said back court of the defenders' property is in a very bad state of repair. It was originally paved, it is believed, with some kind of granolithic or asphalt pavement, but this seems to have been a poor quality of pavement, and it has worn away or been destroyed in many places, leaving many holes and ridges, in which those using the back court were liable to catch their feet, or to trip and fall.

1ST DIV. Young v. Campbell.

December 15, 1928.

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