85 Mich. 593 | Mich. | 1891
Action of libel. Verdict and judgment for plaintiff for Si,000.
The libelous article was published in the Coldwater Republican, July 20, 1888, which newspaper was owned and published by the defendants. It reads as follows:
“ A Kentucky Sensation, in Which are Some Cold-water People.
“ The following excerpts are taken from the Louisville, Ky., Commercial of July 18. All the parties are well known in this city.
*596 “Lexington, Ky., July 17. Considering the many points of interest, the varied and suspicious movements of the principal actors, and the scandals which have arisen since investigation commenced, probably the suit for ejectment filed by Sidney Clay against B. S. Wright in the Bourbon circuit court, in which depositions have been taken, is the most sensational suit ever on docket in a court in central Kentucky. *******
“To get at the case it requires going back to a couple of years ago. At that time a gentleman with the haughty bearing of a lord, the style of a prince, the figure of an Adonis, and to all appearances an unlimited purse, made his appearance in the little Bourbon capital. As is usual, he said he was on the lookout for a fine bluegrass farm on which to place his superb stud of trotters, which was headed by the noted stallion Royal Fearnaught. Thus Mr. B. S. Wright made his advent into the county of 'Bourbon. * * * At last, however, he selected a place, which proved to be what is known as the 1 Sidney Clay Home/ owned by the gentleman of that name, who íb perhaps the wealthiest individual in Bourbon county. He informed Mr. Olay his place was the one he wanted, but he did not desire at that time to purchase it, as the locality might not suit him after a residence for a while in the neighborhood, but he was willing to lease it for a term of years, with the privilege of buying it at the expiration of the time stated. These terms suited Mr. Olay, and the lease was drawn up, the papers signed, and the key of the old homestead turned over to Mr. Wright. * * * When he (Wright) got well settled in his new home, what has proved to be his side partner, a man named Ira H. Harris, arrived from Ooldwater, Mich., and took up quarters at the farm. He was accompanied by two ladies, one of whom was Charles Harris* wife, while the other was a beautiful .• young girl of 15 years, named Miss Tory Osborne. From their advent in the neighborhood the scandal commenced, which promises to end only when all of the principal actors have bid fair Bourbon adieu. Hardly had they taken up their abode in the mansion on the farm before rumors of their conduct became noised about in that locality. It was at first thought to he only servants* gossip, but in a few months the affair culminated in the discovery being made that the fair young girl had succumbed to Harris* fascinations, and was unfortunately in an interesting condition. * * **597 Things were not in this condition long, as Ira G. Harris, at Wright's suggestion, induced a Mrs. Farons, a boardinghouse keeper of Coldwater, Mich., to come out and run that part of the business. She too was accompanied by a young, lady, who proved to be her daughter, aged 18 years. Not long after they had taken up their quarters on the place another scandal developed,, as by some hook or crook it was discovered that Wright and Mrs. Farons were occupying the same apartment, while Harris and the daughter were doing likewise in another part of the building. This was carried on for some time, and then Wright and Harris had a falling out, which, however, did not develop until hostilities had ceased, when the gossipers found out that a change had come over the inmates of their notorious establishment, as Wright had taken up with the girl, while Harris and the old lady had suddenly become to be on the most intimate terms. At this stage, like an apparation, Mrs. Farons' husband appeared on the scene. It was thought this would bring the crisis, but it failed to materialize; for if the old man made any discoveries he kept them to himself.''
The defendants received by mail a copy of the Louisville Commercial, with this article marked, and published it the next day in their semi-weekly issue, as an item of news. The following week it was also published in the weekly issue of the paper. The plaintiff's name was'Far-rand instead of Farons. Shortly after the appearance of the article in defendants' paper, and on the same day, a brother of the plaintiff went to the defendants, informed them that he was plaintiff’s brother, that plaintiff had not been in Kentucky, and demanded' a retraction of the article. On July 27 the defendants published in their paper the following:
“ The brother of Bertha Farrand, whose name was mentioned in the Louisville (Ky.) Commercial, which was copied last week Friday in this paper, says that his sister is here, and has been here. If this be. so, the Commercial made a great mistake, which we presume it would willingly rectify were its mistake made known to it, as*598 no journal will willfully do any person, and certainly not a young woman, a wrong.”
On July 81 the following appeared in defendants’ paper:
“Notwithstanding the spirit of fairness which theEepubliean has exhibited towards Miss Farons, who is an entire stranger to us, and our readiness, expressed July 20 to the man who claimed to be her brother, to publish any. statement in explanation of the facts in the case as he saw them which he might wish to make (which offer he has refused), the party aggrieved, with A. T. Lanphere as attorney, has seen fit to serve papers upon A. J. Aid-rich & Oo. for trespass on the case in the sum of $5,000. At our solicitation, a friend saw Mr. Ben Wright, in Detroit, during the races last week, and interviewed him as to the statements made in the Louisville (Ky.) Commercial article of July 18, extracts from which were copied into the Eepubliean of July 20. He states that the article is a piece of spite work on the part of his landlord and of the reporter for the paper, and declares that the statements made in the Commercial were false, both as regarding himself and other persons named.”
Plaintiff had lived with her father and mother in Cold-water, who had kept a boarding-house very near the publication office of the defendants’ paper. They gave up the boarding-house in March, 1888, the father and mother going to Kentucky, and the plaintiff going to live with an uncle in St. Joseph county.
The plea was the general issue, with notice of justification; that the article was published in good faith; that, if false, it was due to mistake, which was corrected in the next issue of the paper; and that defendants offered to publish a correction of the same in as conspicuous a manner and place in their paper as was the article sued upon, if any one desired it to be done.
In reply to special questions, the jury found that the defendants were not actuated by any malice in the pub
“When that article appeared, and your attention was called to it, to whom did you think at the time it referred?”
The authorities are not agreed as to the admissibility of such evidence. The defendants insist that the jury should have determined this question from the article itself. Probably, in this case, the jury would have found no difficulty in determining from the articles themselves that the plaintiff was meant, for in the second article her name is spelled correctly.' It is difficult, if not impossible, to lay down a rule applicable to all cases. Each case must very largely depend upon its own peculiar circumstances. This will clearly appear from an examination of the numerous decisions involving the question. In the present case the name was misspelled, but in sound was very similar to the correct name. Under these-circumstances, we think it was competent to show by persons living in the vicinity, and who read the article,, that they understood it to refer to the plaintiff. If this-were not so the admission of the testimony in this case could not be a reversible error, because there is no doubt-from this record but that the plaintiff was the person referred to. 13 Amer. & Eng. Enc. Law, 486; 3 Lawson,. Rights, Rem. & Pr. § 1244, and authorities there cited.
But the verdict in this case is so small that we do not think the jury could have been prejudiced by the admission of the testimony. Here was a charge of the grossest immorality published against a young woman, against whose character the record does not cast even a suspicion. The publication of such an article without investigation, when a brief investigation would have reached the truth, is unwarranted. We do not, therefore, think the case should be reversed on this ground. Reputations, especially those of young women, are not to be thus lightly treated by publishers of newspapers in their desire to issue a newsy and spicy paper, and to publish scandal to suit the taste of" their' readers. Such publications cannot be defended nor protected, when published without taking any steps whatever to ascertain the truth of the accusations made, especially when the truth is so easily within reach.
“1. You will regard with great caution all testimony-given as to the condition and state of mind or feelings of the plaintiff since July 31, 1888, and consider whether her actions and expressions, claimed as indicating her condition, were not made under a strong temptation to feign suffering, or to imagine or exaggerate her feelings, and whether she had not in her mind just what expressions her cause required to make it a success.
“2. Declarations or actions, to be of much service as to the mental condition of a party or the alleged suffering of the plaintiff in this case, should be the natural effusions of one upon an occasion when her mind stands in an even position, and without any temptation to exceed the truth.
“ 3. To give her declarations or actions any other force after the commencement of the suit would open the door for the fabrication of testimony, which you cannot be too careful in guarding against.”
Upon this subject the court charged the jury as follows:
“As bearing upon the question of extent of the injury inflicted, the court has permitted evidence to go to you from the friends of the plaintiff as to what her appearance and conduct were subsequent to the commencement of this suit, and prior to her return to Coldwater from Klinger Lake, in September. It becomes the duty of the court to say to you that these appearances and this conduct having been observed after the commencement of the suit, and while the plaintiff was under the temptation to exaggerate her injury and the damages she might be able to recover in this action, for this reason this evidence should be carefully considered by you, and if you find such appearances and conduct to have been simulated, or in so far as you may find them to have been simulated, if at all, and not to have been the outward and natural expression of real suffering, they should be disregarded by you. If, however, such appearances and conduct were*603 but honest expressions of true suffering, and the result of the publication in question, or in so far as they are found by you to be real, and not simulated or exaggerated, you should give such evidence its fair weight in determining the character and extent of the injury, if any, which the plaintiff has suffered from the publication.”
This charge of the judge was entirely fair, and covered the whole ground. The requests were objectionable, in that they referred to declarations on the part of the plaintiff made subsequent to the time when she first read the article. There was no evidence of any such declarations. The testimony was all directed to her appearance and conduct. It was no error to refuse these requests.
“A presumption obtains, however, that a party will call such witnesses as have knowledge of facts favorable to himself, and are readily accessible; and a failure to call a witness readily accessible, who has knowledge of facts in issue, is presumed to be because 'the witness would not support the claim of the party so failing to call him, unless it further appears that the witness for some reason is hostile to the party upon whom otherwise the duty would be to call him.”
To this the court added:
“This is but a presumption, however, and any reasonable explanation found in the evidence for such failure to call the plaintiff should dispel the presumption.”
To this latter instruction by the judge defendants’ counsel object, because they say that there was no attempt at any such explanation in the evidence. The obvious reply to this is that there was no fact jn issue to which it was material and necessary to call the plaintiff. Her conduct was not assailed; the charge against her was
Judgment affirmed.
In this case the defendant was allowed to be asked concerning his pecuniary circumstances at the time of the slander.
See Cole v. Railway Co., 81 Mich. 156 (head-note 2).