128-NLR-NLR-V-31-BANDA-v.-THOMAS.pdf
( 461 )
Present: Fisher C.J.
BANDA v.. THOMAS.129—C. R. Mdtale, 18,929.
Action for damages—Fish exposed for sale—Condemnation by apothecary—Malice—Came, nf action.
Where fish exposed for sale was' condemned by a sanitaryinspector on the authority of an apothecary, who falsely andmaliciously stated that tho fish was unfit for human consumption,—
Held, that theowner ofthe fishhad a 'cause ofaction for
damages against the apothecary.
A
PPEAL from a judgment of the Commissioner of Requests,
• Matale.
H. V. Perera, for defendant, appellant.
Navaratnam,, for plaintiff, respondent.
February 19, 1930. Fisher C.J.—
In this case the plaintiff who is a vendor of fish seeks to recoverdamages against the defendant, an apothecary, for having falselystated that certain fishthat hehad forsale was unfitforfood
whereby a sanitary inspector prohibited the plaintiff from sellingthe fish, causing damages .to the plaintiff in the sum of Rs. 34.I do not think it can be doubted that, if a man falsely and mali-ciously disparages the goods of another, whose business it is to sellthem, to a man whose duty it is to prevent the goods being soldif the disparaging statements are true, who acts on such statementsand prevents them from being sold., and the owner thereby suffersloss, .the latter has a cause of action against the person who has somade the statements. ‘ The question is whether all the above-mentioned elements are present in this case. The evidence shows(a) that the defendanttold thesanitaryinspector thatthefish
which the plaintiff had for sale was bad; (b) that it wasnotbad.
I think it must be taken that, the sample sent to the DistrictMedical Officer was a fair sample, and the learned Commissionerwas clearly of this opinion; moreover, proceedings were institutedagainst the plaintiff for exposing his fish for sale, which was unfitfor food, which in the result were withdrawn, (c) That in con-sequence of the defendant’s statement the inspector, whose powerto condemn is not contested, condemned the fish. The inspectorsaid in his evidence, “ I cannot condemn without a medical report,and the medical report is clearly the statement made by thedefendant, (d) That the plaintiff suffered damage by the fishbeing taken away from him, and the amount of the damagesclaimed is not excessive. The only question is whether the learnedCommissioner was justified in finding that the defendant actedmdla fide, that is .to say, did he say what was untrue knowing it
1980
1930
Fishkr C.J.
Bttrwla v.Thomas
( 462 )
to be untrue ? The evidence is directed to show that the defendanthad an ulterior motive, namely, that he acted with'malice beingactuated by some resentment against the plaintiff. The plaintiffand another witness deposed to the fact that the defendant hadasked the plaintiff to give him some fish for nothing and thatthe plaintiff had refused. The learned Commissioner says: “ thedefendant acted mdla fide in condemning the fish because he wasnot given some fish free. The sanitary inspector’s evidence showsthat the alleged examination of the fish was a very cursory one.This supports the plaintiff’s version tha.t the defendant condemnedthe fish through anger and not for any other reason, ’’ and he goeson to say that it was clear that the fish was not unfit. He thereforefound that the defendant made a statement which he knew to befalse and that he was actuated in so doing by the fact that theplaintiff had refused to give him some fish.free. Where it is soughtto establish malice against a person who primd facie is acting in theperformance of a public duty the evidence should establish some-thing more than mere suspicion. The learned Judge’s finding isbased on facts which, if true, justify an inference of malice. Icannot say his finding on this point is wrong.
The appeal must be dismissed with costs.
Appeal dismissed.