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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Finburgh v. Moss' Empires Ltd [1908] ScotCS CSIH_4 (09 June 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/1908_SC_928.html
Cite as: 1908 SC 928, (1908) 16 SLT 116, [1908] ScotCS CSIH_4

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JISCBAILII_CASE_SCOT_DELICT

09 June 1908

Finburgh
v.
Moss' Empires, Limited.

Lord Stormonth-Darling.—This case raises in a pure form the general question whether a corporation can ever be liable for oral slander alleged to have been uttered by one of their servants in the course of his service and for their benefit. The novelty of the question consists in this, that so far as can be discovered, no concrete instance of such an action has ever been known either in England or Scotland. While this is so, it is quite settled by the Privy Council case of Citizens Life Assurance Company, Limited, v. Brown that the old legal theory that a corporation as such was incapable of malice is now exploded; and malice, as has been repeatedly laid down both here and in England, is of the essence of slander, whether the occasion be privileged or not. The only difference which the existence of privilege can make is that, if the occasion be not privileged, the law presumes malice from the defamatory character of the statement made; and, if it is privileged, the presumption of malice is displaced. It is further settled by the Privy Council case that, in questions where the master is sought to be made liable for written defamation by the servant, the question will depend on whether the servant was at the time of the defamation acting in the course of an employment which was authorised, and that even though the servant had no actual authority for the particular act complained of. For the Privy Council expressly approved and adopted (at p. 428) the words of Mr Justice Willes in the well-known case of Barwick v. English Joint Stock Bank .

Now, this is the case of a very gross slander—nothing less than the charge, made in the presence of witnesses, against a young married woman of being a prostitute, and that the lady must leave the theatre at once. The pursuer says that this statement, uttered originally by the defenders' under-manager, being protested against by the lady's husband and insisted in by the under-manager, was confirmed in effect by the manager, who said,—“That is quite enough; the woman must leave at once.” It is true that within a short time the slanders were withdrawn and apologised for by the manager, but by that time the slanders had been uttered and repeated. Now, why should there be any difference in law, as respects liability of a master, between words spoken and words written by a servant? I acknowledge that the written words imply more deliberation, and inasmuch as litera scripta manet, are capable of more certainty. But that is only a question of evidence. I do not see why, as regards the question as to the servant being within the sphere of his employment, there should be any difference in principle between words spoken and words written, so long as the words proved to have been spoken are clearly slanderous in their nature. I take that to have been implied in the judgment of the Court in Agnew's case. I admit that the Court must be satisfied that the spoken words were really slanderous, and that it may be more difficult, or even impossible, to hold that where the words were casual words, or words used rashly, or in rixa. Accordingly it must always require great caution to be exercised before an issue is allowed against an employer for words spoken by an employee. But here it is admitted by the defenders that it was the duty of their servant to exclude what is called “undesirable persons” from the theatre in the discharge of their functions both under the regulations made by the Magistrates of the city of Glasgow, and also (I should think) their duty at common law, for the maintenance of order. The pursuers undertake the onus of proving that such was their duty, and the Lord Ordinary by the issue which he has approved has allowed them an opportunity of doing so. I think his Lordship is right.

He is further of opinion that the record does not disclose a case of privilege, and therefore that malice should not be inserted in the issue. I agree that as a matter of ordinary practice malice will be inserted in the issue only where the pursuer's record discloses a case of privilege. But I am of opinion that, fairly read, the pursuer's record does disclose a case of privilege, for she refers for their terms to the bye-laws made by the Magistrates and confirmed by the Sheriff of Lanarkshire; and it is obvious that the whole case will turn on whether the admitted mistake of the theatre servants shewed such recklessness and disregard of consequences as to amount in law to malice. I accordingly think that we should vary the issue allowed by the

Lord Ordinary by inserting the words “and maliciously” after the word “calumniously” in each of the issues. There is no case, as there was in Buchanan v. Magistrates of Glasgow, for requiring a special averment of facts and circumstances inferring malice apart from the circumstances in which the words were used.

Lord Low concurred.

Lord Ardwall.—The defenders maintain that this action should be dismissed as irrelevant in respect that the slander averred was a verbal slander, and that employers are not liable for verbal slanders uttered by those in their employment. In support of this it was pointed out that in no reported case had a master or principal been held liable in damages in respect of the verbal slander of his servant or agent, and that to hold this action relevant would be extending the law of liability for slander to an undesirable and even dangerous extent. The question is accordingly one of general importance.

In the case of the Citizens Life Assurance Company, Limited, v. Brown, in which an assurance company was sued for damages in respect of a slander contained in a circular issued by one of their agents, the jury returned a verdict for the plaintiffs, and the Privy Council declined to disturb their verdict. Accordingly, that case must be taken as settling that there are circumstances in which the principal will be liable for slanders uttered by an agent or servant in the course of his employment.

Now, if this be the case with regard to written slanders, I think there is no sound reason in principle why an employer should not be liable for slander spoken by his agent or servant. But in applying the principle of liability to any particular case, the greatest care must be taken to secure that a principal is not made liable for a slander uttered by a servant or agent unless it be made perfectly clear that the slander was uttered directly in the interests of the master's business and in the course of executing such business, and that the words or some of them complained of in any particular case were not merely the outcome of heated or hasty temper on the part of the servant, or spoken with a view to gratifying his own private spite or malice. As I said in the case of Agnew v. The British Legal Life Assurance Company, Limited, —“I take it to be a sound rule that it is the person who utters or writes the defamatory matter who is alone responsible for it, and that it is only in very special circumstances that the principal may be held responsible for the language of his agent.“ Accordingly in that case and in the cases of Nicklas and Eprile quoted by the Lord Ordinary in his opinion, the pursuer was refused an issue. And not only must the words of the alleged slander be strictly scrutinised with the view of determining whether the expressions used were such that the principal can in fairness be held responsible for them, but it is incumbent on the pursuer in such action to set forth distinctly and specifically on record facts from which it may be inferred that the verbal slander complained of is a slander that should be held in law to be imputable to the principals so as to justify the issue that it was a slander uttered by them by or through their servant.

I cannot doubt that the pursuer's record in the present case fulfils all the requirements I have been dealing with. They amount shortly to this, that the pursuer having gone with her husband and two friends to the defenders' theatre in Glasgow, and paid for a box, the defenders' under-manager and afterwards their manager, in the course of their employment, and in the supposed execution of their duty both to their employers and to the public of keeping the theatre free from bad characters, insisted on the pursuer leaving the theatre, on the ground, as they then stated, that the pursuer was a notorious prostitute, and had been thrown out of the theatre two weeks before for being drunk and disorderly. This, of course, arose entirely from a mistake, but two things are undoubted, first, that a very gross slander was uttered, and second, that it was uttered in the course of the slanderers' employment by the defenders, and in pursuance of the duty which they had to perform, and in the performance of which they must be held in law to have been acting with the authority and for the benefit of the defenders. I am accordingly of opinion that the pursuer is entitled to an issue.

The next question is whether, on the pursuer's record, a case of privilege is disclosed requiring that the pursuer take an issue of malice. I am of opinion that such a case is disclosed. The place where the slander was uttered was a theatre, and under the Act 6 and 7 Victoria, chapter 68, it is provided that it shall not be lawful for any person to have a theatre without procuring a licence from the Lord Chamberlain or the Justices of the Peace, and there are careful provisions for the proper conduct of the theatre. Among others the Justices of the Peace of a district in which a theatre is opened are directed to make suitable rules for ensuring order and decency at the several theatres licensed by them within their jurisdiction, and by the Burgh Police (Scotland) Act, 1892, sections 395 and 396, additional provisions are made for theatres within burgh, and by section 399 the magistrates are empowered to make bye-laws for the suppression of riots and disorderly conduct in theatres, and similar provisions are inserted in the Glasgow Police Act. Now, these two first Acts are public Acts, while with regard to the Glasgow Police Act, which is referred to in answer 3 of the defenders' statement of facts, that also is an Act of which the Court has judicial knowledge, and in common with the other Acts it provides for the enactment of bye-laws for the decent and orderly conduct of theatres and places of public entertainment. I am therefore of opinion that when it is set forth, on record by the pursuer that the incident on record happened in the Empire Theatre of Varieties in Sauchiehall Street, Glasgow, and that the expulsion of the pursuer and the giving of the reason for it which constitutes the slander, were the acts of those concerned with the management of the theatre, and were ostensibly and ex facie done and uttered for the purpose of preserving decency and order in the theatre, I think that a complete case of privilege is disclosed, and that the words complained of, however slanderous, were uttered by those who had a right and a duty to utter these words, supposing them to have been true. Not having been true, of course it exposes those who uttered them or their principals to an action for slander, but that does not make the occasion less a privileged occasion, and therefore I am of opinion that the pursuer must take an issue of malice.

The only other question is whether the pursuer is entitled on the record to an issue of malice, and without going into the details of her statements I may say that my opinion is that there are averments charging the defenders' servants with recklessness sufficient, if proved, to entitle a jury to infer malice, and that because it is a rule of law that where statements are made recklessly, without sufficient inquiry, and without ordinary and reasonable regard to the character of others, such words may be held to have been uttered maliciously.

Husband's Action.

Lord Stormonth-Darling.—The slander here complained of arises out of the same incident as forms the subject of the action at the instance of the pursuer's wife. So far as the pursuer's averments affect the wife, I do not doubt that the words used were calculated to aggravate the slander against her, and that the mere fact that these words are said to have been addressed to her husband instead of to herself, does not mend matters.

But the pursuer does not innuendo the words as affecting the lady. He complains on his own behalf that what was meant was to accuse him of associating with a prostitute, and that he was guilty of deliberate falsehood by attempting to pass her off as his wife. The Lord Ordinary has held that this entitles him to seek damages, and to seek them from the defenders for the imputation on his own character.

I cannot agree with his Lordship's conclusion. I doubt if the words are a slander at all against the husband; at all events they affected him merely obliquely (so to speak), and the obvious intention of the speaker was incidental to the charge against the wife. But I think more decidedly that the pursuer is not entitled to sue the master in respect of it. It is nowhere admitted by the defenders, as it is in the wife's action, that it was any part of the duty of the servants of the defenders to turn out of the theatre men who were in the company of prostitutes or men who were guilty of deliberate falsehood, and all the averments of the pursuer with regard to the duty of the servants have reference to the lady alone. I think the innuendo is too far-fetched to be reasonably admissible. I am therefore in favour of disallowing the husband's issue and dismissing the action.

Lord Low concurred.

Lord Ardwall.—I also am of opinion that the issue in this case should be disallowed.

The averments of the pursuer, though they mix up the accusation made against his wife with the alleged accusation made against him on the part of the defenders' servants, really resolve, when analysed, into two separate and distinct complaints. The one is that his wife was falsely and calumniously described as a woman of bad character. The other is that when he attempted to shield her by saying that she was his wife, he was told in so many words that that was a lie. I can find nothing else in the case, and the joining together of the two things cannot make the pursuer's case better or worse.

Accordingly, the first question comes to be whether the pursuer is entitled to maintain this action in respect of the slander against his wife. Now, it is said, that by calling his wife a prostitute the defenders' servants impliedly accused him of being an associate of prostitutes. I do not think that this presents a relevant case of slander. The fact that a woman has erroneously been called a prostitute, or that a man has been called a swindler or a thief, will not entitle the relatives or friends of such a person, however near or intimate, to raise actions for slander because forsooth the accusation made against their relative or friend implies that they are the relatives or friends of a person of bad character. In my opinion a person who has uttered a slander is, as a general rule, only liable for the direct damage caused thereby to the person of and concerning whom the slander has been written or uttered, and any damage that may have been caused to other persons through the utterance of such slander is too remote and consequential to infer liability against the alleged slanderer.

Coming to the next alleged slander, I think the pursuer's averments are equally irrelevant. It is not slanderous to say that a person is telling a lie, and it has even been held that to call a person a liar where that expression simply means that he has told a lie does not constitute slander.

I am therefore of opinion that the issue ought to be disallowed, and the action dismissed as irrelevant.

The LORD JUSTICE-CLERK was absent.

[1908] SC 928

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