Evening News Ass'n v. Tryon

42 Mich. 549 | Mich. | 1880

Marstoí', C. J.

This was an action brought to recover ■ damages suffered by reason of the publication of a libel ous article by the plaintiff in error.

We are of opinion that the court correctly instructed the- jury upon the subject of exemplary damages. In cases like the present the publication is considered a voluntary act, and is presumed to have proceeded from malicious motives, thus entitling the plaintiff to recover exemplary damages. If it appears upon the trial that there was no intention in fact to injure the plaintiff, and that all proper precaution was observed in the publication of the article complained of, such facts will not 'prevent a recovery of such damages, but will reduce the amount thereof to such sums as must inevitably have resulted from the wrong. Scripps v. Reilly, 38 Mich., 23.

The next question is whether a retraction of the article, published after the commencement of the action, could be considered in mitigation of damages. No direct authority in support of such a position has been cited on the argument, and the cases referred to do not, we think, sustain such a doctrine. If such a retraction may be so considered then there can be no limitation well fixed as to the time within which it should be made, or beyond which it ought not to be so considered. The action may not be commenced until long after the publication complained of, and the trial may be still longer delayed. Besides there may be more than one trial, so that after the libelous article has run its course, a retraction could in no sense mitigate the injury sustained. Indeed, at such a late day, a retraction would but revive the scandal and might be an aggravation rather than otherwise.

We discover no error, and the judgment must be affirmed with costs.

The other Justices concurred.