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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston v. Dilke and Others [1875] ScotLR 12_486 (16 June 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0486.html Cite as: [1875] SLR 12_486, [1875] ScotLR 12_486 |
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Page: 486↓
Jury Trial — Motion for New Trial — Expenses.
Where an action had been raised against the proprietors of a journal for criticisms on an atlas, and £1275 damages were awarded by a jury,— held, on a motion for a new trial, that the damages were excessive, and damages of consent assessed at £100 by the Court, and rule refused.
A new trial was moved for on the ground (1) that the verdict was contrary to evidence, and (2) that the damages were excessive. The motion was refused on the first ground absolutely, and on the second after the Court had of consent assessed the damage at a much lower sum: Held, in a question as to the expenses of the application, that the point as to damages only having been made out, the party thus successful partially were entitled to one half the taxed expenses.
This case was tried before Lord Moncreiff, Lord Justice-Clerk, and a Jury, on March 24, 1875, upon the following issues:—“It being admitted that in the number of the ‘Athenæum’ newspaper published by the defenders on 11th July 1874, the article printed in the schedule appended hereto, appeared: 1. Whether the said article was of and concerning the pursuer and his firm of W. & A. K. Johnston, and falsely and calumniously represents—That the pursuer and his said firm had falsely, and for the purpose of deceiving the public, issued as the work of A. Keith Johnston an atlas which was not the work either of A. Keith Johnston the first or A. Keith Johnston the second, but of persons not skilled in making an atlas; to the loss, injury, and damage of the pursuer. 2. Whether the said article was of and concerning the pursuer and his said firm of W. & A. K. Johnston, and falsely and calumniously represents—That the pursuer and his present firm of W. & A. K. Johnston were no longer capable of producing good and useful atlases or geographical works; to the loss, injury, and damage of the pursuer. Damages laid at £5000.”
The article referred to was as follows:—“The number of the Proceedings of the Royal Geographical Society just published contains a letter from Dr Livingstone to Sir Henry Rawlinson, in which the great traveller says:—‘It was gratifying to find that, though my letters disappeared, Keith Johnston secundus, as he ought to be called, had, with the true geographical acumen of my lamented friend Keith Johnston primus, conjectured that the drainage (from Lake Bangweolo) went to the north-west, as I found it, and to the Congo, as I often feared.’
“The atlas now before us, though bearing the name of A. Keith Johnston, is the work of neither the primus nor the secundus of that name, for the son is no longer connected with the house established by his late father, the merited reputation of which he was so well qualified to maintain, but is gone to seek his fortune in Paraguay. And not merely from the present work, but from others which have lately come to our notice, we regret to observe unmistakeable signs of the absence of that ‘true geographical acumen’ which Livingstone so justly lauded.
This ‘Educational Atlas,’ though nicely got up, and in this and in other respects following the traditions of the firm under whose name it appears, is scarcely a work likely to maintain the special character of that firm, it being one that might have been prepared at the work-table of any map-maker of ordinary ability. We are far from saying that in its maps of the known portions of the globe it contains any material errors or omissions, or that the general execution and finishing of the work are deficient; but the engraving, though artistically, or rather mechanically good, is so delicate and faint, and the maps are so overcrowded with names, as to render them indistinct and difficult of reference—the first essential, as it appears to us, in an ‘educational’ atlas. In these respects the ‘School Atlas’ published by the same firm some twenty years and more ago, is, to our mind, superior.
To the maps is appended an ‘alphabetical index to every place contained in the atlas.’ comprising some 20,000 names, which ought, one would have thought, to leave little, if anything, to be desired in the way of reference. And yet, curiously enough, we happen at this very moment to have before us a letter, dated ‘Greenisland, Otago, New Zealand,’ and a tract published at Listowel, Ontario,’ or Canada West; and wishing to ascertain the positions of those two out-of-the-way places, we have looked for them in vain, both in the index and on the maps of ‘New Zealand’ and ‘Canada’ in the atlas. We are far from taking these two omissions as specimens of the whole work; still they certainly form a strange and unlucky coincidence.
In this index of names the position of each place is indicated by the notation of its latitude and longitude to the nearest minute, precisely as is the case in the ‘Tables’ of Claudius Ptolemy, and this serves to show that such precision of notation is no proof of geographical accuracy resulting from astronomical observation or actual survey; the fact being that each spot is first marked on the map with as near an approach to accuracy as is practicable, and sometimes from most uncertain data, and then the latitude and longitude of the position thus assumed is measured off from the map, and noted in the Index or Table.
Take, for instance, Livingstone's Lake Bangweolo. In the index, we find it registered as lying in 11° 30 ‘S. lat., and 28° 0’ E. long.; which notation truly serves as a guide to its position on the map, No. 28, of ‘North Africa,’ but might be most misleading were we to regard it as anything but an approximation to the actual position of that lake, which Livingstone had no means of determining positively.
In the map of Africa we notice several important variations from former maps made, we cannot exactly say how correctly or on what authority. The ‘Sources of the Nile’ are placed in about 10° S. lat., and 35° E. long., and the river is thence led through Lake Liemba into Lake Tanganyika; but there it stops, there being no sign whatever of any outlet from that lake, or of any connection between these ‘Sources’ and the Nile itself. This is as if the idea of Keith Johnston secundus, advocated by Mr Findlay, and recently maintained by Sir Samuel Baker, that Tanganyika is ‘one water’ with the Albert Nyanza, were abandoned by the present cartographer in deference to the alleged
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autopsy of Dr Livingstone and Mr Stanley, but he has not had the ‘geographical acumen’ to follow out his own conclusion by erasing the words Sources of the Nile' from the map, where, as they stand, they are perfectly absurd. On the other hand, a ‘Source of the Nile’ of a very different character is ruthlessly annihilated; namely, that of the Godjeb, which river was thirty years ago declared by M. d'Abbadia to be the head of the White Nile, and to have been crossed by him on his way to Kaffa, though he subsequently declared the Gibbe of Enarea, a branch stream of the Godjeb, whose source he visited, to be the veritable head of the White Nile. (See his letters in the Athenæum, Nos. 1041 and 1042, of October 7th and 14th, 1847.) Now the river formed by the union of the Godjeb and Gibbe is by Messrs Johnston (following, if we mistake not, the German geographer Kiepart), turned altogether away from the Nile, and laid down as the upper course of the Juba—the ‘Goschop’ of Dr Krapf and Major Harris—which falls into the Indian Ocean near the Equator; and thus is restored to its place on the map of Africa the river Zebee (Bruce's Kibbee), crossed by Father Antonio Fernandes in 1613, and described by Ludolf in his ‘Historia Æthiopica,’ lib. i. cap. 3, on the authority of his Abyssinian friend Abba Gregorius, in these terms:—‘De fluminibus, quæ vicinum Oceanum intrant, Gregorius plura non narravit quam supra retulimus. Zebæus in Enarea ortus, et fiuitimum Regnum Zendjero instar Nili in modum peninsulæ ambiens, in meridiem decurrit, et juxta Mombacem mari Indico misceri creditur.’
Further, the draughtsman, not having the fear of Colonel Grant before his eyes, divides Captain Speke's Victoria Nyanza into three lakes! We must confess an inclination on our own part of his opinion; only we could never admit the eastern lake to bear the name of ‘Ukerewe,’ whilst the island of ‘Kerewe’ is within the southern lake.
And, lastly, assuming Keith Johnston secundus to be right in turning the river which flows from Lake Bangweolo away from the Nile, and carrying it north-westward to the Congo, we cannot believe that that able geographer would have given its assumed course such a turn round to the south as is shown on the present map. But whilst we are writing this, we read in the Times of June 30th a letter from Lieutenant Cameron, dated Ujiji, February 25th, in which he says,, ‘I hear from the people here that the Lualaba from Nyangwe goes into the Mwootanzige or Bahari Unyoro, so it must be the Nile after all.’
On the whole, we miss in this atlas the presence of the master-mind which, in both father and son, gave to the house of W. and A. K. Johnston the character it has so long enjoyed, but we fear is now losing, in the world of science.”
The jury gave the pursuers £1275 damages. On 14th May 1875 the defenders moved the Court for leave to be heard on a motion for a rule to show cause why the verdict should not be set aside and a new trial granted. The Court appointed counsel to be heard on this motion, and ordered a copy of the notes of the evidence taken by the presiding Judge to be printed. The case now came up for hearing.
At advising—
The issue relates to a long and elaborate article upon the subject of a geographical publication, and it contains a variety of matters which the pursuers felt to be injurious to them. The two issues which were granted by the Lord Ordinary—I assume after discussion—were those that are now before the Court. The whole sting of the issue is in the innuendo attributed to the article as a whole. That the article is of and concerning the pursuer is quite certain. That some of the statements contained in it are untrue is also certain; but the real question brought before the jury was, whether the article bore the innuendo which is appended to and forms part of the issues that were approved of and sent to trial? Now, my Lords, I do not think that, although an issue is adjusted containing an innuendo which the pursuer undertakes to prove it is beyond the power of the presiding Judge, looking to the evidence and to the import of the language said to have been used, to say to the jury that no case has been presented to them which would justify that innuendo, and that the words will not bear it. But, on the other hand, when an issue is sent to a jury, and there are no collateral circumstances founded on to modify the natural meaning of the words, it appears to me that, prima facie at all events, it is a matter for the consideration of the jury. In this case I find that these two issues had been carefully adjusted by the Lord Ordinary, and that he had expressed his views in a note which he added to his judgment.
In regard to the second issue, which puts to the jury whether the article represented that the pursuer and his present firm of W. & A. K. Johnston “were no longer capable of producing good and useful atlases or geographical works,” my impression was that that was altogether a forced and fanciful construction to be put upon the article; it would require very strong words indeed to deduce that result from anything that could be said upon such a work. But I did not think it necessary to withdraw that from the jury. I told the jury that such was my impression on the evidence, and they accordingly adopted or coincided in the view that I expressed.
In regard to the first issue, the matter was considerably more perplexing; because it contains a very complex innuendo containing various elements, all of which it was necessary that the pursuer should maintain and establish. “That the pursuer and his said firm had falsely, and for the purpose of deceiving the public, issued as the work of A. Keith Johnston an atlas which was not the work either of A. Keith Johnston the first or A. Keith Johnston the second, but of persons not skilled in making an atlas.” The question that arose for the jury was, whether the article meant all those things. Now, my lords, if the article had simply said that, looking to the nature of this atlas and its abounding errors, the critic came to the conclusion that it could not be the work of the experienced geographers who had been in the habit of making the maps of A. K. Johnston, I do not know that there would have been much of a case to send to the jury. At all events, it would have been impossible to maintain it on the footing of this innuendo. Probably a critic is entitled to say, if he gives the grounds on which he says it, “I assume from the excessive carelessness of the work which we are criticising
Page: 488↓
But then came the question, assuming the statement that it was not the work of A. Keith Johnston the first or the second, as represented in the article, whether the pursuer and his said firm had falsely, and for the purpose of deceiving the public, issued as the work of A. Keith Johnston the first or the second an atlas which was not the work of these parties, but of persons not skilled in making an atlas. Now—to pass for a moment from the purpose of deceiving the public—it appeared to me that there was evidence to go to the jury that the article meant to represent the maps as the work of persons not skilled in making an atlas—that is to say, not eminently skilled. That they could make a map is of course assumed in the article itself, for it is assumed that this map might be made by a map-maker of ordinary ability. But these references are to the true geographical acumen which occur two or three times in this article—in the second paragraph, in the last, and especially in paragraph 4, where they say that the present cartographer has not the geographical acumen to follow out his own conclusion by erasing the words, “Sources of the Nile.” I think the jury entitled to judge for themselves, and to affirm that part of the issue, if they were satisfied on the subject.
The last, and by far the most difficult point in the inquiry, was whether the article meant to say that the Messrs Johnston, by putting the name of the firm upon the book, intended to deceive the public. I think they did mean to say that the public were deceived, or would be so, but for their caution, for they say that “the work before us, though bearing the name of A. Keith Johnston, is the work of neither the primus nor the secundus of that name”—that is, that the public would naturally have expected that it was the work of one or other of them, but that in point of fact it was not. Now, whether that was said with the intention of representing that by putting that name upon the book the firm intended to lead the public to believe what was contrary to the fact,—that it was the work of the old hands, and not of new—was the question which the jury had to consider. I think that a strong inference to draw from the words, and so I told the jury. But I am not in a position to say that it is not an inference which they were entitled to draw. I cannot say that it is contrary to the evidence. I might not myself have drawn the inference, but the jury had the whole case before them, and heard the whole evidence such as it was, into which I do not think it necessary to go—it was not very strong of its class, but there was a certain amount of it—I am not prepared to say that the jury, being in this position and having found as they did, went contrary to the evidence in so finding. And therefore I was satisfied with this part of the verdict as it was returned, and I would not be disposed to have this investigation over again before a fresh jury.
In regard to the matter of damage, I must fairly say that I think there was no justification and no foundation for the amount of damage which the jury gave. I may perhaps take some blame myself that I did not make any observations to the jury upon that subject, led mainly by the fact which was stated by Mr Fraser yesterday, that he appealed to the jury mainly for a vindication of the character of this work, and very much on the ground that he had no expression of regret for the mistake in point of fact which had been made. The jury have found a verdict of £1,275. As I have said, I think that is entirely without evidence, and accordingly it appears to me that if that verdict is to be taken as it is, it would be impossible for us to avoid giving a new trial on that ground,—which is quite a sufficient ground. But I think we are quite entitled to take the course of putting it to the pursuers to accept a reasonable sum—what we consider reasonable—in name of damages; and if they are willing to do that, and to allow the verdict to be modified to that extent, then I think there will be no necessity for any new trial.
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In regard to the other ground upon which the application has been made for a new trial, I do not feel that it would be safe for me to indulge in any observations. I am very much impressed with what fell from his Lordship in the chair, who presided at the trial, and who was in a much better position to judge of the matter probably than any other Judge who had not that advantage. I am disposed to think that the observations which his Lordship has made are well founded. At the same time, if there is a new trial—and whether there is to be one or not depends on the concession which the pursuer is ready to make—it occurs to me that the less we say on the subject of the first ground of application the better, as it is quite possible that any observations which might fall from the bench on that subject might, in the event of a new trial, prejudice the party at that trial. There may be new evidence. The case may possibly be presented to the jury, who will be a different jury, in a different way, and on other evidence. Therefore it is better, if there is to be a new trial, that the case should go unprejudiced by any remarks that might be made on that subject.
Mr Fraser—In regard to the amount of damage, I am authorised by the pursuer to state that he leaves himself entirely in the hands of the Court.
The Court pronounced the following interlocutor.
“The Lords having heard counsel, in respect that the pursuer consents that the amount of damages found by the verdict of the jury shall be reduced to £100, discharge the rule, and find the defender entitled to expenses in connection with the application for a rule, which modify to one-half of the taxed
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amount, and remit to the Auditor to tax said expenses, and to report.”
On the question of expenses—
The Dean of Faculty asked for the expenses of the application.
Mr Fraser—I ask for the expenses of this application. I have got the rule discharged. The main ground which I stated from the beginning was that this matter of damage was never made an important thing by the pursuer at all; and I so stated to the jury.
Dean of Faculty—There was never any offer to accept a less sum of damage. On the contrary, the pursuer has been maintaining his right to have the verdict left standing, which assesses the damage at £1275. Unless the pursuer had been obliged to accept the sum which your Lordships had awarded I should have been entitled to my rule. Your Lordships have been in my favour upon that point, and I have only lost in consequence of the pursuer now agreeing to accept £100.
Counsel for the Pursuer— Fraser and Trayner. Agents— Keegan & Welsh, S.S.C.
Counsel for the Defenders—Dean of Faculty ( Clark), Q.C., Lancaster, and Robertson. Agents— Tods, Murray, & Jamieson, W.S.
