the trial and given explanation in certain matters, the costs LIDSTONE of the two appeals would have been avoided.
McWiMuLss
Appeal dismissed. appellant.
T. A. Campbell K.C. and J. 0. C. Campbell for the respondents.
ANDREW R. McNICHOL (DEFENDANT)
APPELLANT; *Oct.
*Oct.
AND
DELVINA GRANDY (PLAINTIFF) ......
RESPONDENT. ON APPEAL FROM THE OF APPEAL MANITOBA Slander-Publication-Words spoken by defendant to plaintiff overheard by third person-Liability-Matters to be considered-Onus of proof -Negligence--Questions for jury.
In an interview between defendant and plaintiff in the dispensary of plaintiff's drug store, defendant, in a loud angry tone (according to evidence given), used words which, plaintiff alleged, slandered her. The conversation was overhead by W. (an employee of plaintiff) who was in an adjoining dressing room and was able to hear because of a small hole (covered over) which firemen had cut in the wall. Neither defendant nor plaintiff knew that W. was in the dressing room or that a person there could overhear what was said in the dispensary. At the trial of the action (for slander), on motion at close of plaintiff's case, Adamson J. held that there was no evidence of publication, withdrew the case from the jury, and dismissed the action. The Court of Appeal for Manitoba Man. R. 442) ordered a new trial. Defendant appealed.
Held, affirming judgment of the Court of Appeal, that there should be a new trial.
What may amount to actionable publication, proof thereof, matters to be considered and onus of proof with regard to them, discussed at length and authorities reviewed.
Per Anglin CJ.C., Rinfret and Cannon JJ.: Assuming, but not deciding, that a defendant is not liable for a purely accidental communication to a third person who hears him utter a slander, the defendant not knowing, nor having any reason to suppose, that any person other than the plaintiff is within earshot, and being free from any fault leading to the communication to the third person; yet, in this case, there was explicit affirmative evidence of negligence of defendant, which was proper for submission to the jury, in the fact that defendant, being angry, raised his voice; and it must be for the jury to say CJ.C. and Duff, Rinfret, Lamont and Cannon JJ.