Wallace v Rand Daily Mails Limited

• Jurisdiction: South Africa

Wallace Appellant v Rand Daily Mails Limited Respondent
1917 AD 479

1917 AD p479

Citation	1917 AD 479
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Innes CJ, Solomon JA and CG Maasdorp JA
Heard	June 5, 1917
Judgment	July 12, 1917

Flynote : Sleutelwoorde

Master and servant — Dismissal of servant — Negligence.

Headnote : Kopnota

There is no fixed rule of law defining the degree of negligence which will justify, dismissal from service.

To a claim by plaintiff for damages for wrongful dismissal from his post as Sporting Editor of two newspapers belonging to defendant company, defendant pleaded that plaintiff had been habitually negligent in the discharge of his duties. The trial Court gave judgment for defendant, founding its decision solely upon the conduct of plaintiff in publishing a certain defamatory article without due enquiry.

Held, on appeal that the judgment must be affirmed.

The decision of the Witwatersrand Local Division in Wallace v Rand Daily Mails Limited, confirmed.

Case Information

Appeal from a decision of the Witwatersrand:Local Division (WARD, J.)

Plaintiff Wallace was appointed by defendant company as Sporting Editor of the Rand Daily Mail and Sunday Times for three years from April 1st, 1915. On June 30th, 1916, he was dismissed from his post by the managing director of the defendant and brought action for £1,000 damages for wrongful dismissal.

1917 AD p480

Defendant company justified the dismissal on the ground that plaintiff misconducted himself in his service by habitually neglecting his duties, and gave the following particulars: -

The plaintiff carelessly and in breach of his duty to the defendant company published or caused to be published in the Sunday Times of the 12th day of December, 1915, under the heading "The Turf," that the race-horse "All Bright" competed in a race called the "Stewards' Plate" at the Germiston racecourse, on the 11th day of December, 1915. The said race-horse did not compete in the said race.

The plaintiff carelessly published or caused to be published in the Sunday Times of the 26th day of September, 1915, that the racehorse "Royal Pleasure" carried 6 stone in the "Pony and Galloway Handicap (Bottoms)," whereas the said "Royal Pleasure" carried 7 stone in the said race.

The Plaintiff carelessly published or caused to be published in the Sunday Times of the 26th September, 1915, that the race-horse "Former Days" carried 8 stone 3 lbs. in the "Pony and Galloway Handicap (Tops)," run on the 25th day of September, 1915, whereas the said race-horse carried 8 stone 13 lbs. in the said race.

In connection with the same race, the plaintiff carelessly published or caused to be published in the said Sunday Times that the race-horse "Little Orphan" carried 8 stone 10 lbs.. The said "Little Orphan" carried 8 stone 11 lbs..

The plaintiff negligently and in breach of his duty to the defendant company published or caused to be published in the Rand Daily Mail of the 14th and 15th June, 1916, certain defamatory and untrue statements in respect of Messrs. J and F. Hausberger. The said Hausbergers have instituted action against the defendant company in respect of the said defamatory and untrue statements.

The plaintiff, in breach of his duty to the defendant company, published or caused to be published in the Rand Daily Mail of the 26th day of May, 19.16, under the heading "Turf Topics," an article reflecting upon the ability and for good faith of the starter, a certain Mr. Halliwell, in respect of the Winter Handicap run at the Turffontein racecourse. The material statements contained in the said article were untrue.

The plaintiff negligently published or caused to be published in the Sunday Times of the 11th June, 1916, an article containing the

1917 AD p481

statement that the caterer of the Springs Sporting Club had instituted an action against the said Springs Sporting Club. There was no truth in the said statement.

The trial Court (WARD, J.) held that the matters set out in the first four of these particulars had been waived and could not be relied on as justifying a dismissal; that the statement with regard to the starter was no ground for dismissal or serious complaint, and that under the circumstances he had not taken into consideration the last matter. He held, however, that the article dealing with Messrs. Hausberger was a serious libel and that plaintiff had published it without adequate enquiry; that this constituted serious negligence for which defendant was justified in dismissing plaintiff.

Plaintiff appealed.

The facts are stated in the judgment of INNES, C.J.

F. G. Mackeurtan (with him G. A. Mulligan), for the appellant: The contract of service may, in the absence of agreement, only be terminated by the master if the servant's conduct is such as to render the continuance of the relationship impossible.

Where the master seeks to terminate on the ground of negligence such negligence must be habitual, or, if a single act must be either so gross in its nature or serious in its consequences as to be equivalent to habitual negligence; Edwards v Levy (2 F. & F. 94); Callo v Browncker (4 C. & P. 518); Gould v Webb (119 E.R. 347.)

J. Stratford, K.C. (with him R. Honey), for the respondent: Plaintiff's conduct justified dismissal without notice, as he utterly failed to verify facts before publishing them. See Baxter v London & County Printing Works (1899, 1 Q.B. 901); Clouston v Corry (1906, A.C. 122). The lesser matters stated in the particulars are relied upon as evidence of negligence generally.

Mackeurtan, in reply.

Cur adv vult.

Postea (July 12th.)

Judgment

Innes, C.J.:

The appellant was under a three years' engagement as Sporting Editor of the Rand Daily Mail and the Sunday Times; and his services were dispensed with after only 15 months

1917 AD p482

Innes, C.J.

of that term had expired. The dismissal is justified on the ground of negligence, and the question is whether that defence has been established. Every servant, every person who enters into the employ of another, implicitly undertakes to exercise due and reasonable diligence in the discharge of his duties. And a breach of that undertaking will, under certain circumstances, entitle the employer to dismiss him.

The defence relied upon was habitual negligence, of which particulars were given in the plea. These fell into two categories: four being errors in racing reports, and three being alleged misstatements in original matter. The learned Judge came to no definite finding upon the first group of charges; he did express his views with regard to all the others; but his decision was founded entirely upon the conduct of the appellant in publishing what may be called the "Hausberger" article. He considered that there had been negligence in that matter so serious as to warrant a termination of the employment, and he therefore gave judgment for the defendant.

Coming now to the merits, the learned Judge arrived at no decision upon the charges of inaccuracy in racing reports. He did not consider it necessary to do so. In view, however, of the fact that the defence pleaded was habitual negligence, an expression of opinion upon that part of the case would have been valuable. That the reports complained of were erroneous is clear, and in three of the four instances given the mistake was important.

It is impossible, as it seems to me, to avoid the conclusion that appellant was negligent in the three instances referred to. And they were not trifling matters; for substantial mistakes as to the weights carried, and as to the horses running, must detract very greatly from the value of racing reports.

Two of the alleged misstatements in original matter were dismissed by the learned Judge as not of great importance. With regard to...