John Wallis, C.J.
1. This is an appeal against the Judgment of Sankaran Nair, J. giving the plaintiff a decree for Rs. 3,000 as damages for an alleged libel published by the defendants, the Madras Times, concerning the plaintiff. The learned Judge held that the published matter was defamatory of the plaintiff, that the justification pleaded was not proved, and that the defendant was not protected by the plea of fair comment.
2. It is with regard to this last point that this case has been mainly argued on appeal, and it will therefore be as well to set out the passage in which the learned Judge may be said to have directed himself as to the way in which this plea was to be dealt with : 'This rule of fair comment itself indicates its limitations. The defendant was only entitled to express his opinion on facts which are true. His assertion of facts on which his comments are founded must be correct; for instance, in this case he must prove this statement that the plaintiff fomented the strike and tried to stop the conference. The plea, of fair comment protects only what purports to be a comment on fact and not those statements of facts.'
3. Nor was the defendant entitled to make any imputation on the plaintiff's moral character, unless he is prepared to justify it by proving it to be true. Imputation of sordid and dishonest motives has to be justified. The writer's opinion must be shown to be well founded, and a correct inference from the facts commented on. For the decision in this case it is necessary to keep this in mind. If the defendant had truly set forth in the article what the plaintiff or the society had done and then stated that such conduct shows him to be dishonest or mischievous, or that it shows that he must have been actuated by sordid motives, the defendant would be within his rights to make the imputation, He has only to prove, if it is denied, that the plaintiff has committed the act alleged to have been done by him. The reason is that if the defendant's opinion is erroneous the article carries, with it the antidote as it enables the reader to form his own conclusion. But if, without giving his reasons, he only says that the plaintiff has been actuated by sordid motives, then he has to prove the facts from which such inference might be reasonably drawn. He has to prove, in fact, that his inference is correct. It is not enough for him to prove facts which might raise a suspicion, or plead that it was a conclusion which an honest person might arrive at; because he has already done the mischief. If the facts were capable of suggesting two inferences, he should have stated the facts on which his comment was based and the statement must only appear as an expression of opinion on these facts. As stated by Lord Atkinson in Dakhyl v. Labouchere (1908) 2 K.B. 325 'A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts.... Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment. 'See also Odgers on Libel page 203 where he points out that where the defendant only states a bare inference without the facts on which that inference is based such inference will have to be treated as An allegation of fact which will have to be proved. It will not be treated as a comment.' Now with all respect it seems to me that the learned Judge has laid down the law. applicable to the present case somewhat too strictly. In saying that the defendant's assertion of facts on which his comments are founded must be correct and that he must prove that the plaintiff fomented the strike and tried to stop the conference he does not appear to have sufficiently considered that though in form, statements of facts, such statements may in the circumstances of the case amount to no more than comments. Further, when the learned Judge says that to justify the imputation of motives it is necessary that the defendant should set out in the article all the facts upon which the imputations are founded that I think is going too far. It is clear, as said by Kennedy, J. in a passage which has since been cited with approval, that 'the defendant must not misstate facts and then proceed to comment on facts so untruly stated.' But in the course of public discussions on matters of public interest proceeding in the press from day to-day, it would be obviously too much to expect that the writer in each article should set out all the facts upon which his comment is based including admitted facts which are within the knowledge of every one interested in the question. That would be carrying the law further than it has ever been carried, and I do not think Dr. Blake Odgers intended to go to these lengths in the passage referred to by the learned Judge, as such a view would not be consistent with an earlier passage of his treatise in which he sets out what I believe to be the law: 'Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done and then asserts that 'such conduct is disgraceful' that is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well-founded and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth.'
4. The distinction is well brought out in one of the cases quoted by Dr. Odgers, O'Brien v. The Marquis of Salisbury (1889) 6 Times L.R. 133 which belongs to the same class of cases as the present case. Field, J, there laid down the law as follows: - 'It seems to me as indeed I suggested during the argument - that comment may sometimes consist in the statement of a fact and may be held to be comment if the fact as stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself made without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little if any, room for the inference that it was understood otherwise than as a bare statement of fact, and then, if untrue, there would be no answer to the action; but if although stated as a fact, it is preceded or accompanied by such other facts, and it can be reasonably based upon them, the words may be reasonably regarded as comment, and comment only and, if honest and fair, excusable; and whether it is to be regarded as fact or comment is a question for the jury, to be determined by them upon all the circumstances of the case and in the very case of Dakhyl v. Labouchere (1908) 2 K.B. 325 cited by the learned Judge where the defendant in his paper, had described the plaintiff as 'a quack of the rankest species' but had failed to prove it at the trial, the House of Lords set aside the verdict for 1,000 damages and ordered a new trial because the jury had not been directed to consider whether the statement did not exceed the limits of fair comment.
5. To come now to the facts of the present case, the article in question was published during the course of a dispute between the Madras and Southern Mahratta Hail way and its employees at a time when a strike was threatened but had not yet taken place. Sometime previously the plaintiff who till then had no connection with railways had become the salaried General Secretary of the Amalgamated Society of Bail way servants in India, Burma, Limited, which had its headquarters at Bombay. The bulk of the M. and S.M. workmen were admittedly subscribers to the Association, which was designed to promote the interests of Railway servants in India and to provide them with strike pay in the event of a strike being considered necessary. The plaintiff in the course of the dispute had come to Madras, and had endeavoured to represent the men in the dispute with the Railway, an interference which the railway refused to allow. On the 10th April 1913 he delivered a speech at Rayapuram, Ex. XII, in the course of which he stated among other things that the Agent would not consent to his leading the deputation and lo the fact that the men had in consequence refused to meet the Agent. He said he was thoroughly in agreement with the men, and went on to suggest that the best solution of the difficulty would be to ask the Agent to receive a written petition which they could have written by any one they chose.
6. On the 24th of April the M. & S. M. Railway issued a statement Ex. VII which was published in the press, in which they set out a telegram which they had received from the plaintiff on the 22nd April in the following terms: - 'Am directed by Trustees to request you to be good enough to grant definite reply to men's petition before 1st May and to inform you that unless wages of Traffic Department are enhanced and Brakesman Rangaswami reinstated, a general strike? will result. Men have suffered for years and their formal petition has been in your hands since 10th instant.' On the afternoon of the 24th the plaintiff delivered a speech to the men, Ex. (26) XXVI in which he said 'lapse of time has proved that the Agent is unyielding and this fact coupled with the overt attempts by the officials to bring the society into discredit has forced the society to support the members' desire to strike if the Agent does not give a definite reply to their petition before the 1st May 1913 and if the wages of the Traffic Department are not enhanced and if Brakesman Rangaswami is not reinstated.' The speaker then proceeded to urge the men to stand by the Association.
7. It was on the following morning of the 25th April that the defendants published the alleged libel in their paper. It was in the following terms: 'Wisely conducted it is possible that trade unions sometimes serve a useful purpose. When, however, they fall into the control of born agitators like the Mr. Rogers who has lately been so prominent in connection with the M. & S.M. Railway dispute, their influence becomes purely mischievous. Men of the same type who have no inherent sympathy for the class they mislead, but who turn agitators purely for what it brings them in the shape of money and notoriety such men were once fairly familiar as trade union officials at home but latterly they have been the subjects of a general clearance. The real purpose of the attempt to foment a strike is fairly clear, viz., to advertise the trade union, and particularly its Secretary.'
8. But what good has the agitation brought to the men? The Conference called by the Agent was called on his own initiative. Why did Mr. Rogers try to stop it? For two reasons, the first being because it seemed likely to settle the men's grievances which would have deprived the Society of its raison detre and secondly because this admirable accomplishment would have been brought about without Mr. Rogers being able subsequently to proclaim that 'alone I did it'. The overweening egotism of the man has been made evident in his speeches, and we can only say that if the men of the M. & S.M. Railway allow themselves to be led into rash conduct by such a person they will command little public sympathy. As a pretext for a strike, the case of the man Rangaswamy is the most trivial, we remember coming across. The only possible explanation is that Mr. Rogers and his society have come here to use the M. & S.M. employees for their own purpose.'
9. We have next to determine as laid down by Field, J. upon all the circumstances of the case whether the several statements are to be considered as consisting of fact or comment. The question of the impending strike was one of great public interest affecting not only the Railway and its employees but also the whole public of Madras and was such as to invite and justify the fullest and freest discussion. The fact that the article begins with a reference to the imminent part taken by the plaintiff in the dispute indicates to my mind that it was intended as comment on facts which were common knowledge, and in view of the speech of the 10th, Ex. VII, which had been published in the papers, it seems to me that the writer of the article was well-warranted in forming and expressing the opinion that the plaintiff had endeavoured to stop the Conference, and in view of the plaintiff's telegram to the Agent of the 22nd, Ex. VII which was then before the public I. think he was also well-warranted in forming and expressing the opinion that the plaintiff was fomenting the strike, and that both these statements are covered by the plea of fair comment. As regards the other statements m the article while the plaintiff though previously unconnected with Railway work was fully entitled to accept the well paid post of managing secretary of this Association and as such to champion the interests of the servants of the Madras and Southern Mahratta Railway and to give them such advice as he thought proper, it must also be borne in mind that in so doing he necessarily made himself a public character exposed to public criticism and invited the fullest canvassing of his conduct and his aims in such matters as his advice to the men not to meet the Agent without him and to strike unless their demands were conceded. In a well-known passage in Warson v. Walter (1868) L.R. Q.B. 73 Cockburn, C.J. speaks of 'the hill liberty of public writers to comment on the conduct and motives of public men,' and in Campbell v. Spottiswoode (1863) 3 B. & S. 769, the same learned Judge lays down that 'where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well-founded, an action is not maintainable.' And as I have already pointed out in Ramakrishna Pillai v. Karunakara Menon : (1913)25MLJ476 , where the more recent cases are collected the statement that the criticism must be well-founded has been held in Peter Walker and Son Limited v. Hadgom and Son Limited (sic), to mean no more than that 'a fair minded man might upon those facts bona fide hold that opinion.'
10. Applying these tests to the present case, I think the writer of the article was warrented as a matter of comment in stating in effect that Mr. Rogers' recent action in connection with the Railway dispute showed him to be a born agitator, if the is defamatory. The next sentences refer to the fact, which was well-known, that Mr. Rogers had no connection with Railways until he joined the association, and what follows appears to me to amount to comment on Mr. Rogers' action, which was well within the knowledge of the public, in advising the men not to meet the Agent in conference unless he was allowed to represent them and in subsequently advising them to strike if their demands were not conceded. It is true that the article as a whole imputes to Mr. Rogers that he was actuated by regard more for his own interests than for the interests of the men. This is a stock accusation against all persons in the position of Mr. Rogers, and may, be parallelled by the equally hard things which are usually said of the employees on such occasions by those who sympathise with the men. Such statements, so far as I know, have never been held actionable. The language no doubt is strong; but if the writer believed that Mr. Rogers' activities were mischievous, he was entitled to express himself forcibly with a view to dissuading the men from following him and so averting a strike. In the result I cannot say that the bounds of fair comment have been exceeded and we must therefore reverse the decision of the learned Judge and dismiss the suit with costs throughout. The money paid money into court will be paid out-to the defendants.
11. I agree.