D. C. 1903 LUDLOW V. BATSON. On December 8th, 1902, before a Divisional Court composed of FALCONBRIDGE, C.J. K. B., and BRITTON, J., the appeal was argued. Brewster, K.C., for the appellants. Harley, K.C., for the respondent. January 19. FALCONBRIDGE, C.J.:-It was manifest on the evidence that the words were not capable of the meaning charged, and the plaintiff's counsel so admitted, saying: “I do not contend that they were actionable per se; but what I do contend is that any words are actionable if he can prove special damage." The real innuendo, if any, would be that the plaintiff, being paid for Olive Batson's board, under the order of Court, was guilty of a mean or contemptible action in seeking to put in an account for trifling items of outlay such as those mentioned. The plaintiff's counsel took his stand on the broad ground that any words are actionable if the plaintiff can prove special damage, and the special damage charged was that the plaintiff's wife left him because of these statements made by the defendant. The plaintiff's counsel made attempts to prove that she left him for this reason, by the evidence of the husband, which evidence was promptly and properly rejected by the learned Judge as being mere hearsay, and therefore inadmissible. Then the plaintiff offered to call the wife to prove this fact; and for the purposes of this motion we must assume that, if called, she would have given evidence accordingly. The learned trial Judge held that the words sworn to were not actionable, even if the special damage alleged were proved; and he dismissed the action, and ordered judgment to be entered for the defendant with costs. The doctrine that any words are actionable by which the party has a special damage, is stated by Heath, J., in 1807, in Moore v. Meagher (1807), 1 Taunt. 38, at p. 44:— "All words, if published falsely and without lawful occasion, are actionable, if in fact they have produced special damage to the plaintiff, such as the law does not deem too remote:" Odgers' Law of Libel, 3rd ed., p. 95. This formula is amply borne out by Ratcliffe v. Evans, [1892] 2 Q.B. 524, particularly in the judgment of Bowen, L.J., at 527: p. "That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law." And Mr. Odgers points out on pages 96 and 97 that there is nothing really counter to this proposition in the decisions in Kelly v. Partington (1833), 5 B. & Ad. 645; and in Sheahan v. Ahearne (1875), Ir. R. 9 C.L. 412, notwithstanding the extremely wide wording of the headnotes to these cases. Enquiry in this case is, therefore, limited to the question whether this alleged special damage is such as the law will recognize as being the natural and reasonable result of the defendant's act, or whether it ought to be deemed too remote. Can any one say that this special damage ought to be considered the fair and natural result of the speaking of these words? If the plaintiff's wife left her husband's home on this account, did she not plainly act without reasonable cause? And if she were suing for alimony, what would the Court say as to the sufficiency of this ground for leaving? There can be only one answer to these questions. As well might she assume to leave her husband because some other woman made uncomplimentary remarks about his personal appearance: see Mayne on Damages, 6th ed., pp. 47-48, 63. I think the withdrawal of the case from the jury was clearly right, and that this motion must be dismissed, but under the circumstances, without costs. BRITTON, J.:-I agree that the motion should be dismissed solely upon the ground that the special damage claimed, and which the plaintiff was prepared to prove at the trial, namely, that the plaintiff's wife left him, and that Olive Batson ceased to board with the plaintiff on account of the words complained of, are too remote. The words spoken are not actionable without special damage. They are actionable if not true, if damage actually resulted, and if such words are calculated in the ordinary course of things to produce such damage. D. C. 1903 LUDLOW v. BATSON. Falconbridge, D. C. 1903 LUDLOW v. BATSON. Britton, J. "Damage is said to be remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, as that the offending party can be made responsible for it." Can it be said that such words, falsely spoken by friend or foe, are likely to cause, as a natural and reasonable result, the separation of husband and wife, or the loss of a boarder? I think not. The case of Lynch v. Knight (1861), 9 H.L. 577, was cited by plaintiff to shew that special damage might be the separation of husband and wife. No doubt about that; but the present decision is quite in line with that case. Lord Wensleydale says, at p. 600: "To make the words actionable, by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words, not what would reasonably follow, or we might think ought to follow." Applying that test to the words spoken in this case, I do not think the consequences alleged could fairly and reasonably have been anticipated or even feared. I had at first a little doubt as to the boarder, Olive Batson, but none as to the plaintiff's wife. This point was not made by the defendant at the trial or upon the motion before the Divisional Court. The learned trial Judge ruled that the words were not actionable, even if special damage were proved; and the evidence tendered by the plaintiff was rejected, and the action dismissed on that ground. I think this was a wrong view of the law. As the point upon which the defendant now succeeds was not taken at the trial, or in his statement of defence, there should be no costs of this motion. G. F. H. [IN THE COURT OF APPEAL.] MCKAY V. GRAND TRUNK R.W. Co. Railway-Crossing-Speed of Trains-Fences-Statutory Requirements — Negli- By the Dominion Railway Act, 1888, sec. 197, as amended by 55 & 56 Vict. The plaintiff was struck by a train at a crossing over a main street in an incorporated town, not protected by a gate or watchman. In an action to recover damages for his injuries, the jury found that the train was travelling at the rate of twenty miles an hour, and that the injury complained of was caused by this excessive speed, coupled with the absence of proper protection at the crossing, and without negligence on the plaintiff's part; and the Court, though there was strong evidence of contributory negligence, declined to interfere. APPEAL by the defendants from the judgment of MacMahon, J., in favour of the plaintiff, upon the findings of the jury, in an action tried at Sarnia, brought by Joseph McKay to recover damages arising from a collision between his horse and buggy and an engine of the defendants at a crossing of the defendants' railway in the town of Forest, which caused the death of his wife and two children, personal injuries to himself, and the destruction of his horse and buggy. The questions submitted to the jury and their answers were as follows: 1st. Was the whistle blown before reaching the Main street crossing, and if so at what distance from the crossing was it first sounded? Yes. At the whistling post. 21-VOL. V. O.L. R. C. A. 1903 Jan. 26. C. A. 1903 MCKAY V. GRAND TRUNK R.W. Co. 2nd. If the bell was rung, where did it first commence to ring, and was it ringing continuously or at short intervals until the engine crossed the street where the accident happened? Bell started to ring east of Main street eight or ten rods, and rang continuously. 3rd. Is the main street crossing at Forest in a thickly peopled portion of the village? Yes. 4th. At what rate of speed was the engine running at the time it crossed Main street? About twenty miles an hour. 5th. Was such rate of speed, in your opinion, a dangerous rate of speed for such locality? Yes. 6th. Was the death of Mrs. McKay and the injury to Joseph McKay caused in consequence of any neglect or omission of the company? If so, what was the neglect or omission, in your opinion, which caused the accident? (a) Yes. (b) Neglect in running too fast and for the neglect of a flag man or gates. 6a. Was any warning given by Hallisey to Mrs. McKay of the engine? Not sufficient. 7th. Could Joseph McKay, had he used ordinary care, have seen the engine in time to have avoided the collision? No. 8th. Was the plaintiff, in your opinion, guilty of any want of ordinary care and diligence which contributed to the accident? If so, state in what respect? No: 9th. If you find the plaintiff is entitled to recover, at what do you assess the damages? (a) By reason of the death of his wife? Eight hundred dollars. (b) By reason of the injuries suffered by himself? Four hundred dollars. (c) For the horse and buggy? One hundred dollars. |