SAMUEL SEWARD TODDINGS Vs. EDMUND GRAHAM GIBBONS

JUDGEMENT

(1.) This is an appeal from an order of the Supreme Court of Bermuda (C. Brooke Francis, C. J.) made on 27th October 1947, for a new trial of an action for damages for libel brought by the respondent against the appellant.

(2.) The respondent is the proprietor of a number of shops and stores in Bermuda and elsewhere. At one of these establishments known as "Gibbons Company" and situated in Queen Street in the City of Hamilton, he carried on business as a retailer of footwear and other goods. The appellant was at all material times the proprietor and publisher of a daily newspaper circulating in Bermuda called the "Mid-Ocean news". The words complained of by the respondent in his action appeared in the issue of this newspaper of 20 January 1947. They took the form of an editorial which is fully set out in the Statement of Claim. It reads thus : "THE GOLDEN RULE IN BUSINESS Being strongly opposed to misleading advertising, not only because it is unethical but because we believe it is detrimental to the interests of this Colony both as regards local and especially tourist trade, we quote an advertisement of Gibbons Company which appeared in last Friday's issue of the Royal Gazette : 'Slowly... It's a slow tedious business getting English goods . . .but we've just received a handsome assortment of new English Shoes. The finest of craftsmanship and leather goes into these quality shoes we've all wanted. Brown, Grain, Brogues and Oxfords ... from 28/6 Gibbons Co. Queen Street Hamilton' There is undoubtedly a brisk demand here for English shoes of quality, and it comes not only from local people bat from the tourists whose numbers we are striving to hard and spending so much to increase. You can imagine our disgust, therefore, when we were reliably informed that the 'handsome assortment of new English shoes' offered in this advertisement was confined to some remnants only. Likewise, you can imagine the disappointment of would be purchasers who responded to the advertised announcement. Fortunately, both H. A. and E. Smith and Triminghams were able to supply what Gibbon Co. merely pretended to have in stock. A notorious cynic once said that there were no ethics in retail business. This may have seemed witty at the time, but it is not true. In the United States, for example, nearly all of the larger departmental stores are members of independent organisations (notably the Retail Research Association and the National Retail Dry goods Association) whose office it is to draw up and enforce a code of ethics. Needless to say, they fulfil many other functions, but this in our estimation is one of the most important. Incidentally, persistent failure or refusal to comply with the codes means dismissal from the association. We can give you a few examples of the Retail Research Association code from one own experience, although we are unable to say whether or not the codes have been altered since the war. Advertising managers or directors, for instance, are required to enforce the code rule against overstatements in advertising. This applies to qualities, values, quantities and assortments. Another interesting code rule applies to 'Sales.' If a store advertises marked down or bargain prices, not less than 20 per cent. of the goods most have been formerly and regularly sold at the maximum original price listed. In other words, which may put it more clearly, if goods are advertised as regularly $10 to $15 values marked down to $6.50, at least 20 per cent. of the entire lot must have been valued and sold at the top price $15. As to why the better stores join these associations and obey their rulings, the answer is that they have found it good business to be truthful and to maintain high standards. The store owners pay for the upkeep of the associations, and find it profitable to make use of their services and adhere to their rules. Anyone who has had experience with departmental store merchandise managers, buyers and over enthusiastic advertising personnel can readily understand why a little 'policing' is necessary. It is for the benefit of the people who dwell in Bermuda or who visit our shores that we have cited the foregoing example of advertising overstatement. If we are to retain our good name; we must maintain high standards of business practice. There is no more excuse for overstatement than there is for over-pricing. The Golden Rule should be as much a part of our business lives as of our private lives. Paraphrasing the Trade Development Board's Publicized requests, we venture to say 'Let's have More Of It!'." In his Defence the appellant pleaded, inter alia, justification, fair comment and that the words complained of were not defamatory. At the trial before the Chief Justice and a special jury both sides called oral evidence and various questions directed to the several issues in the case were left to the jury. Of these questions only the first need now be mentioned. It and the answer to it were as follows : "Q. Do the words complained of amount to a defamatory statement ? A. No."

(3.) On this finding the learned Chief Justice gave judgment for the appellant with costs ; but subsequently, on a motion brought by the respondent, he ordered a new trial upon the ground that reasonable men could not, on the evidence, have arrived at this answer. It is from this decision that the appellant now appeals.