Scottish Court of Session Decisions

These were two actions for damages for slander brought against Moss' Empires, Limited. The first action was at the instance of Mrs Dora Alexander or Finburgh, wife of David Finburgh, Maplewell House, New Walk, Leicester, and concluded for damages laid at £1000; the second action was at the instance of the said David Finburgh, and concluded for damages of the same amount.

In the action at the instance of Mrs Finburgh, the pursuer averred that in November 1907 she with her husband, and Joseph Lipscher, and John Franklin, were in a private box at the defenders' theatre in Glasgow. “(Cond. 3) While the party were seated in their box, and shortly after the performance commenced, a page boy, and shortly thereafter one of the defenders' attendants in uniform, entered the box, scrutinised the occupants, and then left. A few minntes after the defenders' under-manager entered the box accompanied by said attendant. The said undermanager then said, pointing at and referring to the pursuer, ‘That woman is a bad character and must leave this theatre.’ The pursuer's husband explained that the pursuer was his wife. The under manager replied that ‘he had heard that story before,’ and that the pursuer must leave at once. Said statements were all made in the presence and hearing of the pursuer, her husband, his friends, and the theatre attendants. The pursuer was very much shocked at the charge made against her, and her husband went out of the box and insisted on the defenders' manager being summoned. On the manager appearing the pursuer's husband complained of the gross insult to which he and the pursuer had been subjected. The manager questioned the under-manager and the attendant on the subject, and they both stated that the pursuer was a notorious prostitute, and had been thrown out of the theatre two weeks before for being drunk and disorderly. These statements were made in the presence and hearing of the pursuer's husband, and the said Joseph Lipcher and the theatre manager and attendants. On hearing this said statement the manager said to the pursuer's husband,‘That is quite enough, the woman must leave at once,’ meaning thereby that the pursuer was a notorious prostitute, and had been thrown out of the theatre two weeks before for being drunk and disorderly, that she was a bad character, and unfit to be allowed to remain in a respectable theatre. The pursuer and her husband and friends thereupon left the theatre. …. (Cond. 5) The defenders are a limited company, and the whole management and conduct of the said theatre is entirely left to the said manager, under-manager, and attendants, who are charged by the defenders with the whole conduct of the business. The said false and calumnious statements were of and concerning the pursuer, and were made by the defenders' said manager, under-manager, and attendant in the course of their service with the defenders and for the defenders' benefit, and were made and persisted in most recklessly, pertinaciously, and maliciously. …”

In their answers the defenders explained that by a bye-law and regulation of the Magistrates of Glasgow for the maintenance of order in the theatres of the city it was provided that the licensed manager should not, by himself or his servants, knowingly permit or suffer men or women of bad fame, or dissolute boys or girls, to enter any theatre as spectators or in any other capacity. They averred (in answer 3) that their “servants acted throughout in the bona fide exercise of their duty under the said bye-law and with the utmost discretion; and no member of the public present in the theatre was in any way aware of the incident.” They also admitted that the programme boy, attendant, assistant-manager, and manager were their servants, but denied that they had slandered the pursuer, and averred that even if they had done so they acted out-with the scope of their employment in so doing.

In the action at the instance of David Finburgh the pursuer made the same averments as were made in the action by Mrs Finburgh. He also averred that the statements complained of “were false and defamatory of the pursuer as well as of his wife, and falsely and calumniously represented, and were intended to represent, that the pursuer was a person of loose and immoral habits and character, that he was associating with a notorious

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prostitute of drunken and disorderly habits, and that he was attempting by deliberate falsehood to pass her off as his wife.”

The defenders pleaded in both actions, inter alia—“(2) The defenders not having slandered the pursuer, they should be assoilzied. (4) Esto, that the servants of the defenders used slanderous expressions towards the pursuer, they acted in so doing outwith the scope of their employment as servants of the defenders; and the latter are not responsible therefor. (5) The defenders' servants having acted in bona fide and with probable cause in the discharge of their duty under the bye-laws libelled, and having been privileged in so doing, the defenders should be assoilzied. (6) The pursuer having suffered no loss or damage through the actings of the defenders, they should be assoilzied.”

The issues proposed by the pursuer in the action by Mrs Finburgh were:—“1. Whether on or about 13th November 1907, in the Empire Theatre of Varieties, Sauchiehall Street, Glasgow, owned and managed by the defenders, the defenders, by their under-manager, in the presence and hearing of pursuer's husband David Finburgh, residing at Maplewell House, New Walk, Leicester, Joseph Lipscher, 25 Rue d'Orléans, Paris, and John Franklin, 75 Garmoyle Road, Liverpool, or one or more of them, falsely and calumniously stated of and concerning the pursuer that she was a bad character and must leave the theatre, or used words of like import and effect, to the loss, injury, and damage of the pursuer. 2. Whether on or about 13th November 1907, in the Empire Theatre of Varieties, Sauchiehall Street, Glasgow, owned and managed by the defenders, the defenders, by their under-manager and one of their attendants at said theatre, or one or other of them, in the presence and hearing of David Finburgh, residing at Maplewell House, New Walk, Leicester, Joseph Lipscher, 25 Rue d'Orléans, Paris, or one or other of them, falsely and calumniously stated of and concerning the pursuer that she was a prostitute and had been put out of the theatre shortly before for being drunk and disorderly; whether on hearing said statement the defenders' manager said, ‘That is quite enough, the woman must leave at once,’ or words of like import and effect, and whether the defenders by their said manager thereby falsely and calumniously represented, or intended to represent, that the pursuer was a prostitute and unfit to be allowed to remain in a respectable theatre, to the loss, injury, and damage of the pursuer. Damages, £1000.”

The issue proposed by the pursuer in the action by Mr Finburgh, put the question whether the various alleged statements were made, and “whether said statements, falsely and calumniously represented and were intended to represent that the pursuer was associating with a prostitute, and that he was attempting by deliberate falsehood to pass her off as his wife, to the loss, injury, and damage of the pursuer. Damages £1000.”

On the 27th February 1908 the Lord Ordinary ( Mackenzie) approved of these issues as the issues for the trial of the causes.

Opinion ( Wife's Case).—“The question raised in this action is whether the defenders, a limited company, are liable for verbal slander alleged to have been uttered in one of their theatres by the under-manager and an attendant in the course of their service and for the defenders' benefit. The case therefore raises the point recently discussed in Nicklas v. The New Popular Cafe Company, Limited, January 25, 1908, 15 S.L.T. 735. An issue was there refused because I was of opinion that it could not be said upon the averments that the defenders' servant was acting within the scope of her authority in using the language complained of. In Eprile v. Caledonian Railway Company, 6 S.L.T. 65, an issue was refused in similar circumstances by Lord Kincairney.

“I am, however, of opinion that if on record a pursuer sets forth that verbal slander was uttered by the servant of a company in such circumstances as to indicate that prima facie the uttering of the slander was an act of the company, he is then entitled to an issue in the form proposed in the present case, viz., whether the defenders by their servant uttered the slander complained of. It will then be for the jury to say whether the act complained of fell within the scope of the servant's employment, or whether it was one for which the defenders are not responsible.

This conclusion seems to me to follow from what has been decided in Scotland as regards written slander. It has been held in Ellis v. National Free Labour Association, 7 F. 629, that the principle laid down by the Privy Council in Citizens Life Assurance Company v. Brown, 1904, A.C., applies in Scotland. According to that a servant may write a slander involving liability on his master, just as he may commit any other act on which an action for reparation against his master can be founded. The question in such a case, as is pointed out by the Lord President, is just whether the servant in doing what is complained of was acting within the scope of his employment or not. If this be the question, then I am unable to see, in point of principle, why, if the servant is acting within the scope of his employment, the master should not be equally liable whether the slander be spoken or written. It is true that up to the present no case has occurred in which an issue has been granted in such circumstances. In Nicklas I stated I would be slow to grant one, having fully in view what was said in Agnew v. British Legal Life Assurance Company, Limited, 8 F. 422, that to open the door to liability for any slanderous language rashly used by anyone in the employment of another, or of a corporation, would be to open the door very wide indeed.

The safeguard against this, in my opinion, is to make it incumbent upon the pursuer to set forth on record facts from which prima facie it may be inferred

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that the verbal slander complained of is a company act. The question accordingly in the present case is whether this has been done. It is to be observed that the employer who is sought to be made liable is a company, and not an individual. A company can only act and speak through its servants.

I think the pursuer makes a strong case on her averments, which are these—She is a married woman, who went with her husband and two friends to the defenders' theatre in Glasgow. A box was paid for and the party had taken their seats, when first a page boy, and then one of the defenders' attendants in uniform, came and scrutinised them. Shortly afterwards the under-manager, accompanied by the same attendant, entered the box, and said,’ That woman is a bad character, and must leave the theatre.’ The pursuer's husband explained that she was his wife, when the under-manager replied that ‘he had heard that story before,’ and that the pursuer must leave at once. Her husband then went out of the box, and insisted on the defenders' manager being summoned. When he came he questioned the undermanager and the attendant. They both stated that the pursuer was a notorious prostitute, and had been thrown out of the theatre two weeks before for being drunk and disorderly. On hearing this statement the manager said to the pursuer's husband, ‘That is quite enough; the woman must leave at once.’ The pursuer and her husband thereupon left the theatre. These are the pursuer's averments.

The pursuer then avers in Cond. 5 that the defenders are a limited company, and that the whole management and conduct of the theatre is entirely left to the manager, under-manager, and attendants, who are charged by the defenders with the whole conduct of the business; that the statements complained of were made by the defenders' manager, under-manager, and attendant in the course of their service with the defenders and for the defenders' benefit, and were made and persisted in most recklessly, pertinaciously, and maliciously. I agree with the defenders' counsel that the averments in Cond. 5 are not sufficient by themselves to entitle the pursuer to an issue. On a question of relevancy, however, it is permissible to look at the defenders' answers. In Ans. 3 they explain that by the bye-laws made by the Magistrates of Glasgow for the maintenance of order in theatres in the city, which apply to the defenders' theatre, it is provided, inter alia, ‘that the licensed manager shall not, by himself or by his servants, knowingly permit or suffer men or women of bad fame, or dissolute boys or girls, to enter any theatre as spectators or in any other capacity.’ Then follows the defenders' explanation of what they say actually occurred, and they aver that ‘the defenders' servants acted throughout in the bona fide exercise of their duty under the said byelaw, and with the utmost discretion; and no member of the public present in the theatre was in any way aware of the incident.’ They no doubt in Ans. 5 deny that any slander was uttered, and say that if their servants did slander the pursuer, in doing so they acted outwith the scope of their employment.

In my opinion the record discloses a prima facie case that it was the defenders who, by their servants, slandered the pursuers, and that the issues should be allowed in the terms proposed.

At the discussion of the issues a motion was made by the pursuers' counsel that the case should be tried with a jury upon the record without issues, as though two issues are required there is only one wrong complained of. I think it better that the jury should have the issues. The defenders' counsel contended that if there was to be inquiry it should be by way of proof. The case, however, seems to be one for a jury.

It was further maintained that the record showed the case was one of privilege, and that therefore malice should be inserted in the issue. The case of Buchanan v. Magistrates of Glasgow, 7 F. 1001, was founded on. That, however, was a different case from the present. I do not consider a case of privilege is disclosed on the record, and am therefore of opinion that malice should not go into the issue.

I shall accordingly approve of the issues proposed.”

Opinion ( Husband's Case).—“In this case the general question as to the defenders' liability for verbal slander alleged to have been uttered by their servant is the same as that raised in the action at Mrs Finburgh's instance, and the averments are substantially the same. I therefore beg respectfully to refer to my opinion in that case.

The issue proposed in this case is whether the statements made by the under-manager and attendant (which are set out in the issue) falsely and calumniously represented, and were intended to represent, that the pursuer was associating with a prostitute, and that he was attempting by deliberate falsehood to pass her off as his wife. This appears to me to raise a question of direct not indirect slander. The husband is not seeking damages because of the slander on his wife, but on account of the imputation on his own character.

This, I think, entitles him to maintain an action, and, for the reasons given in the opinion referred to, I am of opinion he is entitled to sue the defenders.

I shall accordingly approve of the issue proposed.”

The defenders reclaimed in both cases, and argued—The defenders were not liable for the verbal slander uttered by their servants, and issues should not have been allowed. In Citizens' Life Assurance Company v. Brown, [1904] AC 423, and Ellis v. National Free Labour Association, May 12, 1905, 7 F. 629, 42 S.L.R. 495, it was decided that a company might be made liable for a slander contained in a circular uttered by their servant; but no case had hitherto occurred in which a company had been rendered liable for a servant's verbal slander. In several cases doubts had been expressed as to whether a company could

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be fixed with liability for a slander uttered by word of mouth— Agnew v. British Legal Life Assurance Company, Limited, January 24, 1906, 8 F. 422, 43 S.L.R. 284. In Eprile v. Caledonian Railway Company, June 21, 1898, 6 S.L.T. 65, and Nicklas v. New Popular Café Company, Limited, January 18, 1908, 15 S.L.T. 735, issues against a company based on verbal slander had been disallowed. In English law the distinction between verbal and written slander was that in the former case the pursuer must set forth special damage, whereas in the latter case he was not required to do so. Although no such distinction was known to the law of Scotland, yet the Courts had recognised the distinction in fact between the two cases. A master might control his servant's pen, but he had no control over his servant's tongue. If it was part of a servant's duty in the course of his employment to write on behalf of his master, then if the servant uttered a slander in so writing the master might be rendered liable on the ground of implied mandate. It was necessary in the first instance to show that the writing was within the scope of the servant's employment— Cameron v. Yeats, January 27, 1899, 1 F. 456, 36 S.L.R. 350; but if this were shown, liability on the part of the master would follow. On the other hand, it could never be said that a servant had an implied mandate to utter a verbal slander. No case had as yet gone so far, and it was inexpedient that so heavy a responsibility should be thrown on a master. Assuming, however, that a master might in some cases be liable for his servant's verbal slander, the facts here excluded liability. No special circumstances, save such as tended to exonerate the defenders, were averred. The defenders' servants might have been fulfilling their duty under the bye-law in turning out the female pursuer, but they had plainly gone beyond their duty in making the statements complained of. Although a servant was doing an act within the scope of his employment, the master would not be liable for the consequences of an indiscreet method of performing that act, which the servant might choose to adopt— Agnew v. British Legal Life Assurance Society, supra. (2) In any event, the occasion was privileged, and malice must be put in issue— Buchanan v. Corporation of Glasgow, July 19, 1905, 7 F. 1001, 42 S.L.R. 801. The defenders' servants were acting in pursuance of their duty under the bye-law in turning out the female pursuer. And the mistake was made bona fide. Recklessness on the part of the servants might displace privilege, but at the same time, if recklessness were proved, that would show that the act was outwith the scope of the servants' employment. (3) As to the husband's action, the defenders could not be made liable to him. It was the servants' duty to eject undesirable persons, but it could be no part of their duty to make reflections on persons in the company of the ejected person. Accordingly, the action at the instance of the husband was irrelevant, and should be dismissed.

The pursuers argued—(1) The general rule was that a master was liable for the act of his servant done within the scope of his employment, both in a question of liability for the servant's quasi-delict and in a question of liability on contract— Dyer v. Munday, [1895] 1 QB 742; Barwick v. English Joint-Stock Bank, L.R., 2 Ex. 259; Limpus v. The London General Omnibus Co., 32 L.J. (N.S.) Excheq. 34; Bevan's Negligence in Law (3rd ed.), vol. i, pp. 575, 579. A case of slander was no exception to this rule. It had been decided that a company might be guilty of malice— Gordon v. British and Foreign Metaline Co., November 16, 1886, 14 R. 75, 24 S.L.R. 60; British Legal Life Assurance and Loan Co., Limited v. Pearl Life Assurance Co., Limited, June 15, 1887, 14 R. 818, 24 S.L.R. 589—and a corporation might injure and be injured by means of a slander, and might sue for damages for slander— Metropolitan Saloon Omnibus Co., Limited v. Hawkins, 28 L. J. (N.S.) Excheq. 201; M'Vean & Co. v. Blair, May 23, 1801, Hume's Decisions, 609. In Citizens' Life Assurance Co. v. Brown, supra, a company was held liable for the slander uttered by its servant, and the principle was supported by the cases cited by the defenders, because the Court would not have considered the facts in these cases if the rule was that a company was exempt from liability for its servants' slander. This being the law as to written slander, the same law must apply to cases of oral slander, for in a question as to the master's liability there was no distinction in principle between the two cases. The only limitation as to the master's liability was that the master must have had power to delegate the duty or act in respect of which the action was brought, and that the act was done for the master's benefit and within the scope of the servants' employment. The scope of the servant's employment could be determined only with reference to the particular facts of each case—Bevan on Negligence in Law (3rd ed.) vol.i. p.584—and on the facts of this case the defenders' servants were acting within the sphere of their employment. (2) The defenders were not privileged. In order that a statement should be held as privileged there must be a duty or interest on the part of the person making the statement, and a duty or interest on the part of the person to whom the statement was made— per L. J.C. Moncreiff in Auld v. Shairp, July 14, 1875, 2 R. 940, 12 S.L.R. 611. In this case there was a duty on the part of the servants towards the defenders, but the servants were under no duty towards the pursuers, and therefore there could be no privilege. It was for the defenders' own interest to keep order in their theatre, but they were under no obligation to any particular member of the audience to do so. This distinguished the present case from Buchanan v. The City of Glasgow, supra, Nor could the defenders at this stage found upon the bye-law, because the pursuers

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did not in their averments found on the bye-law, and on the question whether malice was to be inserted in the issue the pursuer's averments alone could be regarded— Reid v. Coyle, May 13, 1892, 19 R. 775, 29 S.L.R. 638; Smyth v. Mackinnon, July 1, 1897, 24 R. 1086, 34 S.L.R. 762; Cooper on Defamation (2nd ed.), p. 189. (3) The husband's action was relevant. The words complained of were addressed to him, and contained a reflection on his character. He had therefore a title to sue this action. In Symmond v. Williamson, 1752, M. 3435, a woman was held entitled to damages in respect of a statement that her mother kept a brothel, and in North of Scotland Banking Co. v. Duncan, June 25, 1857, 19 D. 881, an institution was allowed to sue for damages because of a statement as to the character of one of the directors. Here the statement represented that the pursuer had brought this alleged prostitute into the theatre, and was attempting to pass her off as his wife. It was capable of bearing the innuendo put on it by the pursuer, and therefore the issue should be allowed, the question whether it actually contained the innuendo being for the jury— Ritchie & Co v. Sexton, March 19, 1891, 18 R. (H.L.) 20, 28 S.L.R. 945; Outram v. Reid, February 28, 1852, 14 D. 577; Shepherd v Elliot, October 16, 1895, 3 S.L.T. 115.