McMullan v Mulhall and Farrell

• Jurisdiction: Ireland
• Judgment Date: 01 January 1930
• Date: 01 January 1930
• Court: Supreme Court (Irish Free State)

M'Mullan v. Mulhall & Farrell

JAMES M'MULLAN

Plaintiff

and

PATRICK MULHALLand JOSEPH FARRELL, Defendants (1)

Supreme Court.

Defamation - Slander - Words touching a person in his vocation - Working painter - Imputation of non-membership of trade union - Whether actionable without proof of special damage - Privilege - Malice - Conspiracy.

The plaintiff was a painter by trade and the two defendants were officials of two trade unions of painters. The plaintiff had belonged to one of these unions for some years, but had been removed from its roll of membership for non-payment of dues. While he was in the employment of a certain employer, representations were made to him by one of the defendants that he should join a trade union again. The plaintiff promised to rejoin his former union on the following day and to pay up the arrears due to that union. Instead of doing so he joined a third trade union of painters, with which neither of the defendants was connected The plaintiff went to the country immediately afterwards on a painting contract of the same employer. The defendants, who were not aware that the plaintiff had joined the third union, interviewed the employer, and one of them said to him: "M'Mullan [the plaintiff] is not a member of any union, and you must dismiss him." The employer recalled the plaintiff from the country and dismissed him. The employer had an understanding with the trade unions that he would not employ non-union workmen so long as there were members of the unions out of employment and willing and competent to work. This fact was known to the plaintiff and to the defendants. The plaintiff had no contract of service with the employer, which would have made his dismissal at will unlawful. The plaintiff brought an action against the defendants for damages for slander and conspiracy, but did not prove any special damage. The jury found for the plaintiff on both causes of action, and judgment was entered for him. On appeal:

Held, by the Supreme Court, that the words spoken of the plaintiff were not defamatory; that they did not touch the plaintiff in his vocation, nor were they spoken of him in the way of his calling, so as to be actionable without proof of special damage.

Jones v. Jones, [1916] 2 A.C. 481, applied.

Held, further, by Kennedy C.J. and by FitzGibbon J. with some doubt, that, even if the words were defamatory, the occasion of their speaking was privileged and there was no evidence to support a finding of express malice.

Held by Murnaghan J. that there was no evidence to support a finding by the jury that the defendants agreed to induce the plaintiff's employer to dismiss the plaintiff for the purpose of injuring the plaintiff.

Accordingly the Supreme Court held that the judgment entered for the plaintiff must be set aside and judgment entered for the defendants.

Motion for a new trial, or, alternatively, that judgment entered for the plaintiff be entered for the defendants.

The action was brought to recover damages for slander and damages for conspiracy. The statement of claim set out, in paragraph 4, that:

"On or about the 30th January, 1928, the defendants

wrongfully conspired together and combined against the plaintiff:—

(a) To speak and publish slander of and concerning the plaintiff, and of and concerning the plaintiff in his trade or business;

(b) To injure the plaintiff in his said trade or business;

(c) By illegal means, that is to say, by defamation, to interfere with the plaintiff's means of earning his livelihood in his said trade or business; and

(d) To procure, cause, and induce the said Innis E. Gibson [the plaintiff's employer] summarily to dismiss the plaintiff from his said employment by the said Innis E. Gibson, and so to dismiss the plaintiff in breach of his said contract of service, which the plaintiff and the said Innis E. Gibson were, and each of them was, ready and willing to perform and fulfil, and to prevent the plaintiff from being employed or re-employed by the said Innis E. Gibson."

The words of which the plaintiff complained were set out as follows:—"'M'Mullan' (meaning the plaintiff) 'is not a member of any Society, and you must sack him to-day; you can't employ him,' or words to that effect."

The innuendo was set out in paragraph 7 as follows:—

"By the said words the defendants, and each of them, meant, and were and was understood by the said Innis E. Gibson to mean, that the plaintiff was not a trade unionist painter, and was not a member of any recognised society of painters, and was not duly qualified to be employed by the said Innis E. Gibson as a painter under the said contract of service or at all, and was an improper person for the said Innis E. Gibson to employ . . ."

The defendants, in their defences, after general traverses, pleaded that the words complained of were incapable of any of the alleged meanings, or of any defamatory, or actionable, meaning; that, they were not actionable without proof of special damage; and that, if they were spoken, they were spoken bona fide and without malice on a privileged occasion. They further pleaded the Trade Disputes Act, 1906.

The facts have been summarised in the headnote, and, with the material parts of the evidence given at the trial, are fully set out in the judgment of FitzGibbon J.

The action was tried by Sullivan P., with a jury, to whom were put twelve questions which, with the answers of the jury, were as follows:—

1. "Did the defendant, Farrell, speak and publish the words, 'M'Mullan is not a member of any union, and you must dismiss him?'" Answer—"Yes."

2. "Were the words spoken of the plaintiff in the way of his trade?" Answer—"Yes."

3. "Did the said words mean that the plaintiff was not duly qualified to be employed as a painter by Mr. Gibson and was an improper person for Mr. Gibson to employ?" Answer—"Yes."

4. "Are the said words defamatory?" Answer— "Yes."

5. "Were the defendants actuated by express malice?"Answer—"Yes."

6. "Were the said words spoken by the defendant, Farrell, by agreement with the defendant, Mulhall, in pursuance of a purpose common to both defendants?" Answer—"Yes."

7. "Assess damages."—"£5."

8. "Did the defendants agree to induce Mr. Gibson to dismiss the plaintiff from his employment?" Answer—"Yes."

9. "If so, did the defendants so agree for the purpose of injuring the plaintiff?" Answer—"Yes."

10. "Was Mr. Gibson induced to dismiss the plaintiff?"Answer—"Yes."

11. "Did such inducement cause loss to the plaintiff?"Answer—"Yes."

12. "Assess damages." "£10."

Upon these findings the jury found for the plaintiff on the count for slander, with £5 damages, and on the count for conspiracy, with £10 damages; making together the sum of £15, for which the learned Judge gave judgment with costs.

The defendants appealed to the Supreme Court to have the verdict and judgment set aside, and that a new trial might be ordered; or, alternatively, that judgment might be entered for the defendants. The grounds of the appeal were that there was no evidence to sustain the verdict; that the verdict was against the weight of evidence; that there was no evidence to sustain the findings given in answer to questions 2, 3, 4, 5, 7, 9, 10, 11, and 12, or any of them; that the learned Judge misdirected the jury by not directing them that the words mentioned in question 1 were not capable of the defamatory meanings alleged, or of any defamatory meaning; that the learned Judge was wrong in not directing the jury that the words mentioned in question 1 were not actionable without proof of special damage, and that no special damage was proved; that the learned Judge was wrong in leaving questions 3, 4, 5, 7, 9, 10, 11, and 12 to the jury; and that the damages awarded were excessive.

Cur. adv. vult.

Kennedy C.J. :—

The plaintiff is a painter by vocation, and, at the time of the matters of which he complains, was in the employment of one, Innis Gibson, a master painter and contractor. The defendant, Patrick Mulhall, is the secretary of a trade union named the Irish National Painters' and Decorators' Trade Union, of which the plaintiff was formerly for some years a member. The defendant, Joseph Farrell, is an official of a trade union named the National Amalgamated Society of Operative House and Ship Painters and Decorators. There is a third trade union for painters in Dublin named the United House and Ship Painters' and Decorators' Union of Ireland, of which, immediately before the date mentioned in the pleadings, the plaintiff had become a member.

The action was brought by the plaintiff against the defendants for damages for slander and for conspiracy, and the jury found in his favour on both causes of action.

The slander as pleaded consisted of the following words, spoken of the plaintiff to Innis Gibson by the defendants on Tuesday, the 31st January, 1928, namely:—"M'Mullan is not a member of any society, and you must sack him to-day. You can't employ him," or words to that effect.

The general facts of the case are stated in detail in the judgment about to be read by Mr. Justice FitzGibbon. It is sufficient for me to refer to his statement.

There is no question as to the fact that the two defendants did go to Innis Gibson on the date mentioned, and did state to him that the plaintiff was not a member of any trade union, and gave him to understand that M'Mullan must be dismissed, and that Gibson summoned M'Mullan back from a job in the country, and dismissed him immediately on his return the next day. Gibson has a working arrangement or understanding with the two trade unions represented by the two defendants, pursuant to which he employs none but trade union labour.

It is also an admitted fact that the plaintiff had on the previous Saturday evening, 28th January, before starting for his work in the country, applied for admission, and had been forthwith admitted (whether validly or not is not quite clear) as a member of the...