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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray v. Wyllie [1916] ScotLR 263 (15 January 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0263.html Cite as: [1916] ScotLR 263, [1916] SLR 263 |
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Page: 263↓
[Sheriff Court at Perth.
Process — Relevancy — Alternative Grounds of Action — One Relevant, the Other Irrelevant.
The defender in an action of damages for slander, a parish minister, wrote a letter to the pursuer, who was then a candidate for the office of elder in the parish church, stating that a serious charge had been made against him by a third party; that if the pursuer persisted in his candidature he would have to tell the kirk-session and have proofs; that he could not ordain an elder, in view of his own ordination vows, against whom there was such a charge; that he thought the pursuer should carefully consider the matter and say that he did not see his way to accept office; that that would be the quietest way, and no one would ever hear of the matter, while otherwise the whole thing must be made public. The pursuer stated his case alternatively, averring that he had not been given any opportunity by the defender to deal with the charge made, and denying that any charge had been made. Held (1) that the occasion was privileged and that there should have been a relevant averment of malice, and (2) that as the defender was acting in a public capacity in discharge of a public duty, “want of probable cause” would have required to go into any issue.
In an action for damages for slander the pursuer's case was stated alternatively, and one of the alternatives, which were mutually exclusive, was irrelevant. Held that the action was irrelevant.
William Murray, butcher, Bankfoot, pursuer, brought an action in the Sheriff Court at Perth against the Reverend A. M. Wyllie, The Manse, Auchtergaven, Bankfoot, defender, for £500 damages for slander.
The pursuer averred—“(Cond. 2) During the autumn of 1914 the defender intimated from the pulpit that four new elders were required to complete the Session of Auchtergaven Church and nomination papers were sent to every member of the congregation in order that they might nominate four elders. When these papers were returned it was found that the pursuer was one of the four highest. (Cond. 3) There
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after, on the 2nd of December 1914, the defender wrote a letter to pursuer as follows:—‘ The Manse, Auchtergaven, 2/12/14.—Dear Mr Murray—When driving some time ago with some friends of mine, who were living in Stanley, Mr Fraser, butcher there, was the driver. I was seated beside him for some time, when he made a serious charge against you. I told him at the time, I remember, he was saying a dangerous thing. It has worried me ever since, and now that you have a desire to be an elder I felt I could do nothing else than ask Mr Fraser to withdraw it or prove it before the Kirk-Session. He will not withdraw, and if you still adhere to your desire I must tell the Kirk-Session and have proofs. The Kirk-Session, you may know, of a parish church is a legal court of the land. We will summon witnesses and have a lawyer to guide the Session. Mr Fraser may have a solicitor also, and you can also be represented. The Kirk-Session knows nothing of the matter as yet, and my tongue shall never utter one word about it to anyone until I am compelled to in the Session. But I cannot ordain an elder, in view of my own ordination vows before Almighty God, with such a charge against his character as Mr Fraser made against yours. On the whole I think you should carefully consider the matter and say that you do not see your way to accept office. This will be the quietest way, and no one shall ever hear of the matter. Otherwise, of course, the whole thing must be made public. You can easily say you have changed your mind with regard to accepting the eldership. With many regrets and apologies for having to write in this way. It is no pleasant task, but duty demands, and to do my duty as a Minister of Christ is sometimes a very difficult matter.—Yours faithfully, A. M. Wyllie. P.S.—Please take plenty of time to consider this and do not act hastily.—A. M. W.’ (Cond. 4) In reply to said letter the pursuer asked the defender to state what was the serious charge which Mr Fraser had made against him and which would disqualify him from the eldership, and that he had not done anything which would disqualify him from holding such an office. In reply to that letter the defender referred the pursuer to Mr Fraser for the serious charge which he had made against him, and stated that he had no more to say in the matter.… Pursuer was anxious to meet and refute the ‘serious charge’ against his character, and in writing the letter condescended on he believed that defender in order to help him in the trying situation in which he was placed would give him the information requested so that he might clear his character. Defender, however, curtly refused to give any information. Pursuer tried to discover both from Mr Fraser and Mr Paul [ the sexsion-clerk] what the serious charge was, but they would not tell him.… Pursuer does not know what the alleged serious charge against his character is which defender makes in his letter of 2nd December.… (Cond. 5) The pursuer's agents applied to Mr Fraser to let them know what was the serious charge which he had made to defender gainst the pursuer, but the said Mr Fraser does not admit that he made any serious charge against pursuer to defender. The pursuer accordingly informed defender of Fraser's attitude, and four times applied to defender to let him know what the serious charge was, so that he might clear his character, or to withdraw the false and slanderous statements contained in said letter, but defender refuses to do so. The pursuer has pointed out to defender how serious are the consequences to him of defender's accusation in said letters, and has asked the defender to give him an opportunity of vindicating his character. Defender has taken no notice whatever of pursuer's requests. Despite pursuer's requests defender without any investigation into its truth or without hearing pursuer communicated said charge to the Kirk—Session, with the result that the pursuer was not ordained an elder.… The Kirk—Session gave pursuer no opportunity of meeting the false charge which defender had communicated to them. It is believed and averred that defender instigated the session to follow this course. Said letter of 2nd December was not written by defender as moderator of the Kirk-Session. In view of its terms and the serious consequences to pursuer the defender was bound, not only to state to pursuer what the alleged serious charge against his character was, but also to investigate its truth before making and repeating it. His refusal to give information and failure to investigate were due to the ill-will he had conceived against pursuer.… (Cond. 6) The defender's said letter was intended to mean and did mean that pursuer had been guilty of dishonourable and discreditable conduct which rendered him unfit to occupy the position of an elder in the Church of Scotland, and that pursuer's moral character was so bad as to prevent defender ordaining him an elder without violating his own ordination vows before Almighty God. (Cond. 7) The statements in said letter were false, malicious, and calumnious. Defender had conceived an ill-will towards pursuer, and did not wish him to become a member of the Kirk—Session. It is believed and averred that no such charge as he alleges was made by Mr Fraser to defender. If any charge was made, which is not admitted, it would only have been natural and proper that defender, con—sideringitsgravity, shouldhavetallen means to ascertain whether it were true or false before writing to pursuer in the terms condescended on, but he did not do so. Had he done so he would have ascertained that there were no grounds for any serious charge against pursuer, and that there was nothing against his character which would unfit him for the office of elder. For his own ends and purposes he wrote the letter making said untrue accusations against pursuer's character in order to have a plausible reason for inducing the pursuer into voluntarily and untruthfully saying he had changed his mind in regard to the eldership. Defender, without investigation and without probable or any cause, recklessly made the said slanderous accusations against pursuer's character. Page: 265↓
Defender knew that Fraser did not admit that he had made any serious charge against pursuer, and that pursuer could not clear his character of the allegations contained in defender's letter of 2nd December without knowing what the serious charge was and when it was made. Yet although requested he did not withdraw the false and slanderous accusations contained in his letter of 2nd December, or state what the serious charge was, nor has he yet done so, in order that pursuer should have no opportunity of clearing his character if any such charge was made, but should suffer the serious consequences of said groundless and slanderousaccusations. Afterhehad written said letter defender acted maliciously in refusing to give pursuer said information in regard to said alleged ‘serious charge’ or an opportunity of meeting and refuting it. Defender knew that there was no such ground as he alleged for refusing to ordain pursuer as an elder, and that if given an opportunity pursuer could clear his character. Accordingly he refused to avail himself of pursuer's offer to meet said charge if its nature were communicated to him, and defender wrote the letter solely for the purpose of having a plausible ground to gratify his ill-will, and so to prevent the pursuer becoming an elder although he had received a majority of the votes of the congregation. Had defender stated what said alleged serious charge was and given pursuer an opportunity of meeting same, pursuer would have shown conclusively that there was no truth in the alleged serious charge, and that there was nothing against his character which unfitted him for the eldership. This defender well knew, and althoughpursuer pointed out to defender how unjust was his conduct and how serious its consequences to pursuer, defender refused to give pursuer a chance to vindicate his character, and notwithstanding pursuer's requests recklessly and without any investigation maliciously communicated to the Kirk-Session that a serious charge had been made against pursuer's moral character which unfitted him for the office of elder.” The defender pleaded, inter alia—“1. The defender having acted solely as moderator of the Kirk-Session is privileged in his communications to the Kirk-Session and in reporting the Kirk-Session's decision to the pursuer, and the action is accordingly irrelevant. … 5. The defender (1) not having slandered the pursuer, (2) the ground of action being that the defender refuses to slander the pursuer, and (3) his whole actings, even according to the pursuer's own averments, being privileged as moderator of the Kirk-Session, is entitled to absolvitor with expenses.”
On 6th July 1915 the Sheriff-Substitute ( Sym) pronounced the following interlocutor:—“The Sheriff-Substitute, the pursuer having on 2nd July intimated that he does not desire to amend his pleadings, finds it admitted (1) that in 1914 the election of the pursuer to the office of elder in the parish church at Auchtergaven was under consideration; (2) that the defender, the minister of the parish, wrote and despatched to the pursuer, and the pursuer received in due course, the letter which is referred to in the condescendence …: Allows to the pursuer a proof of his averments that the defender never had any charge made to him by Mr Fraser mentioned in that letter against the pursuer; that the defender by the said letter falsely, maliciously, and calumniously and out of ill will to the pursuer and for a purpose of his own wrote and sent said letter to the pursuer, and also falsely informed his elders that a serious charge had been made against the character of the pursuer whereby the pursuer has suffered loss and damage in character and feelings: Allows the defender a proof of his answers thereto: Quoad ultra refuses proof of the pursuer's averments: Appoints the proof to proceed within the Court House, Perth, on the day of, and grants diligence for citing witnesses and havers: Appoints the pursuer to enrol the cause that a diet may be assigned.”
The pursuer required the case to be remitted to the First Division of the Court of Session, and on 15th October the First Division ordered issues to be lodged. Two issues were lodged, the first of which was abandoned at the hearing. The second was in the following terms—… 2. Whether on or about 2nd December 1914 the defender in a letter written and sent by him to the pursuer, falsely, calumniously, and maliciously stated of and concerning the pursuer, ‘I cannot ordain an elder, in view of my own ordination vows before Almighty God, with such a charge against his character as Mr Fraser made against yours. On the whole I think you should carefully consider the matter and say that you do not see your way to accept office. This will be the quietest way, and no one shall ever hear of the matter. Otherwise, of course, the whole thing must be made public. You can easily say you have changed your mind with regard to accepting the eldership’; meaning thereby that pursuer had been guilty of dishonourable and discreditable conduct which rendered him unfit to occupy the position of an elder in the Church of Scotland, and that pursuer's moral character was so bad as to prevent defender ordaining him an elder without violating his own ordination vows before Almighty God, to the loss, injury, and damage of” pursuer. Damages laid at £500.”
Argued for the defender—The pursuer's case was stated alternatively; the alternatives, which were mutually contradictory, were either that in point of fact a charge against the pursuer was made to the defender, or that no such charge was made, but the defender falsely stated such a charge had been made. If the second alternative was the case against the defender, it no doubt contained a sufficient averment of malice, but the defender was entitled to say that the weaker and first alternative was the case against him, and if so the pursuer's case was irrelevant. The letter was not reasonably susceptible of the innuendo placed upon it; it merely stated that information had been given, and the nature of the information, and that was not
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slander. But even if the letter was open to the innuendo, the occasion was privileged in the highest degree, as the defender acted in the discharge of his duty, and there was no relevant averment of malice— Susor v. M'Lachlan, 1914 S.C. 308, 51 S.L.R. 309; Macdonald v. M'Coll, 1901, 3 F. 1082, 38 S.L.R. 781. Further, want of probable cause was not averred, yet it must go in the issue, as this was the case of a public official discharging a public duty— Croucher v. Inglis, 1889, 16 R. 774, 26 S.L.R. 587; Milne v. Smith, 1892, 20 R. 95, 30 S.L.R. 105. The case being stated alternatively, and one of the alternatives being irrelevant, the action must be dismissed— Finnie v. Logie, 1859, 21 D. 825. Argued for the pursuer—The action was relevant; it was admitted that the second alternative ground of action was relevant. The first alternative was relevant also. The letter was not a mere transmission of information received to the person interested, but it clearly though impliedly showed that the writer believed the truth of the information given. Malice should not go in the issue, but even if it was inserted, the defender's endorsation of the information he conveyed was clearly malicious, and so also was his refusal to give an opportunity for inquiry. Without probable cause should not go in the issue, for that was limited to cases where the alleged slander was contained in a statement to the police— Webster v. Paterson & Sons, 1910 S.C. 459, 47 S.L.R. 307; Croucher v. Inglia ( cit.); Milne v. Smith ( cit.); A v. B, 1895, 22 R. 984, 32 S.L.R. 514.
At advising—
Now on this record there is no averment either of malice or of lack of probable cause, because to say that the defender refused to specify the charge, or to investigate it before laying it before the Kirk-Session, is to aver the absence rather than the presence of malice. That there was probable cause is plain, for the pursuer himself distinctly avers that the charge was made and was communicated by the defender to the Kirk—Session.
Accordingly it appears to me that if this were the only case made for the pursuer, plainly the issue must be refused. But then it is said that there is an alternative case stated in this record, and in the 7th article of the condescendence, in one short sentence, we 6 nd it set out thus—It is believed and averred that no such charge as he alleges was made by Mr Fraser to the defender.” That is very clear and distinct, although sufficiently brief, and it appears that in the Sheriff Court the pursuer took his stand firmly upon this alternative. He said it was his only case. That was not the attitude adopted by the pursuer in the argument before us. He refuses now to commit himself to either alternative. He declines to say whether the charge was made or was not made, and he proposes to stand on both alternatives—to submit his case to the jury on both alternatives. He made no proposal to be allowed to amend his record.
Now, on the assumption that this is an alternative case, well averred, and that it is sound and relevant, inasmuch as the other limb of the alternative is palpably unsound and irrelevant, this is a plain case for the application of the familiar rule laid down by Lord President M'Neill in the case of Finnie v. Logan, 1859, 21 D. 825, where he says—“When the alternative consists in this, that one branch of the statement is relevant and the other not—one branch of it a good ground of action and the other not—then to say that one or other of the things so alternatively averred is true is not a relevant statement at all. It is nothing more than to say that either there is a ground of action or there is not, and that therefore the defender is liable.” The whole question is put with great clearness and succinctness by Lord Curriehill when he says—“When there are alternatives, one of which is relevant and one of which is not relevant, the action before the Court comes to be an action on no allegationatall, because the relevant averment cannot be adopted when the party himself does not stand upon it.” That is exactly the pursuer's case here, and accordingly I see no alternative to dismissal of this action.
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If the pursuer had confined his cause of action to that which he sets forth in the first five lines of condescendence 7, I should have had no hesitation in holding him entitled to an issue containing the words “maliciously and without probable cause.” It would then have been open to him to establish by evidence either that no charge whatsoever against his character had been made to the defender by Mr Fraser, or alternatively that if some charge had been made it was one which no reasonable man would have regarded as a justification for writing the letter complained of. In the former case it would have been obvious that the defender acted maliciously and without probable cause when he wrote a letter falsely pretending that a serious charge had been made. On the other hand, if it appeared on the evidence that some charge had been made, but that it afforded no reasonable ground for writing the letter, the pursuer would have established want of probable cause. It would still, however, have been necessary for him to prove affirmatively that the defender had acted maliciously, i.e., from a wrong motive, and to negative the suggestion that the defender had acted innocently, though possibly foolishly or thoughtlessly, or had failed because he was greatly “worried” to make his real meaning clear. In my view the general averment of malice in the beginning of condescendence 7 would have been sufficient to entitle the pursuer to an issue.
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I am doubtful whether this second ground of action has been relevantly averred. The averment of it consists of a single sentence in condescendence 7—“It is believed and averred that no such charge as he alleges was made by Mr Fraser to the defender.”
If the pursuer seriously meant to make so grave a case against the defender as that he deliberati'ly fabricated or invented the statements about Fraser, this should have been pointedly and unambiguously averred.
Taking the case, however, on the footing on which it was argued, the defender's contention was that the first alternative ground of action was irrelevant, and therefore, on the principles laid down by Lord President M'Neill in the case of Finnie v. Logie, 1859, 21 D. 825, the whole action was bad. The defender's counsel conceded that the second ground of action was relevant, but he maintained that this would not avail the pursuer if his first ground of action failed.
The defender attacked the first alternative case of the pursuer on two grounds. He argued, in the first place, that as the defender did nothing more in his letter than transmit or report to the pursuer what Fraser had said, that as he had neither invented nor adopted the charge which had been made, that as he had, in short, done nothing more than tell the truth, he had committed no actionable wrong. It was conceded by the pursuer's counsel that if the import of the defender's letter had been nothing more than this no action would lie. The pursuer maintained, however, that the reasonable meaning of the penultimate paragraph of the letter was that the defender had adopted the slander by impliedly expressing the opinion that it was true.
Assuming that this is a reasonable construction to place upon that paragraph of the letter, it follows that the first, of the defender's contentions fails.
The defender contended, in the second place, that as the occasion was on the pursuer's averments privileged, and as there was no relevant averment of malice, the first ground of action failed. I am of opinion that this contention is well founded. The pursuer's averments disclose a case of privilege. The defender as a minister of the Gospel had a clear duty to make the communication in question to one who was a candidate for eldership. The pursuer had a clear interest to receive the communication. These are the conditions which create an occasion of privilege— Hebditch, L.R., [1894] 2 QB 54.
I am further of opinion that this is a case in which the privilege of the defender was so high that special averments of facts and circumstances indicative of malice are necessary.
I am unable to find in connection with this first ground of action any relevant averments of malice. The pursuer makes two averments as indicating malice on the part of the defender—(1) that he did not disclose to the pursuer what was the charge which Fraser had made, and (2) that before writing the letter he did not make investigations to ascertain whether or not the charge was true. I am unable to hold that either of these averments is indicative of malice. I think the defender's line of conduct as disclosed in the correspondence was absolutely correct. He referred the pursuer to Fraser for the particulars of the charge, and he rightly refused to undertake as an individual any investigation with reference to the truth or falsity of the charge.
This is sufficient for the decision of the
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As I do not find it necessary for the determination of the action to decide this point, I desire to reserve my opinion upon it.
The Court dismissed the action.
Counsel for the Pursuer— Macmillan, K.C.— R. Macgregor Mitchell. Agents— J. Miller Thomson & Company, W.S.
Counsel for the Defender— Moncrieff, K.C.— Macdonald. Agents— Rainy & Cameron, W.S.