Tolley v JS Fry & Sons Ltd

Viscount
Hailsham.

Viscount
Dunedin.

Lord

Buck-

master.

Lord

Blanes-

burgh.

Lord
Tomlin.

MY LORDS,

The plaintiff in this case is a well-known amateur golfer.
The Defendants are manufacturers of chocolate in various forms.

In the month of June 1928, the Defendants published in the
" Daily Sketch " and " Daily Mail ", newspapers enjoying a large
circulation in London and the provinces, a caricature of the
Plaintiff which represented him in golfing costume having just
completed a drive, with-a packet of the Defendants' chocolate pro-
truding from his pocket, in the company of a caddie who is holding
up packets of the Defendants' chocolate; below the caricature was
a limerick in the following terms :—

" The caddie to Tolley said, Oh, Sir,

Good shot, Sir! That ball, see it go, Sir,

My word how it flies,

Like a cartet of Frys,

They're handy, they're good, and priced low, Sir."

The caricature and the limerick were surrounded with de-
scriptions of the merits of the Defendants' chocolates, and the whole
was plainly an advertisement of the Defendants' goods.

The Plaintiff thereupon brought this action for damages for
libel. He did not complain of the caricature or the words as
being defamatory in themselves; but the innuendo alleged that
the " Defendants meant and were understood to mean that the
" Plaintiff had agreed or permitted his portrait to be exhibited
" for the purpose of the advertisement of the Defendants' chocolate,
" that he had done so for gain and reward, that he had prostituted
" his reputation as an amateur golf-player for advertising pur-
" poses, that he was seeking notoriety and gain by the means
" aforesaid, and that he had been guilty of conduct unworthy of
" his status as an amateur golfer."

At the conclusion of the Plaintiff's, case, the Defendants sub-
mitted that there was no case to go to the Jury; the Judge overruled
this contention and the Jury found a verdict for the Plaintiff
for £1,000 damages. From this decision the Defendants' appealed,
asking for a new trial on the grounds that the damages were
excessive, and further asking for judgment on the ground that
the Judge ought to have ruled that there was no case to go to
the Jury. The Court of Appeal came to the conclusion that the
damages were excessive, and that there ought in any event to
be a new trial on that ground; but the majority of the Court
further held that there was no case to leave to the Jury and
accordingly directed that judgment should be entered for the
Defendants. From this latter decision the present appeal is brought
to your Lordships' House.

My Lords, from the foregoing narrative it is plain that in
order to succeed, the Plaintiff must satisfy the Jury that the pub-
lication complained of was capable of some, at least, of…