(after stating the facts). 1. Wаs the publication privileged'? The publication was not that of the contents of papers filed in the course of judicial proceedings. It was not a report of testimony taken in court. No witnesses had been sworn. The only document filed in the justice’s court was a complaint made for nonsupport, and this was not known to the reporters or to defendant. To this documеnt no reference whatever was made in the publication, t Plaintiff’s wife, her brother, and the brother of Agnes Hartung went to police headquarters, and there related to a police officer the alleged troubles between plaintiff and his wife. The wife had with her a picture of the girl Agnes and her husband, taken together. One Jan Schmedding, a reporter for the Evening News, camе to’the police officer after the wife and others had made their statements to him. Schmedding testified that the
i The publication was not privileged. The conversation between the officer and plaintiff’s wife was not a judicial investigation. Rеports made to police officers charging persons with crime are not privileged communications,- and those who publish such reports do so at their perihj Evidently, Schmedding did not rely uрon the statements made to him 'by the officer. He was simply told by him “that these parties had reported a couple eloping.” He then hurried to the parties, got their statements, relied uрon them as true, and, without any further investigation, the defendant published them. There were no court proceedings upon which to base the question of privilege. The authorities cited by counsel, based upon the publication of court proceedings, do not apply. The statements published were not gathered from any proceedings in court, but the information was obtained from parties entirely outside of any court. The only defense, therefore, that could be made to the publication, was its truthfulness. J
2. HTa the court err in instructing the jury as follows:
“If the defendant has not succeeded in proving the truth оf all the defamatory statements just as charged, the fact that he has again in his plea said that the charges were true may be considered by you in estimating the damages to be awardеd to the plaintiff. * * * In estimating the damages to be awarded for the publication of a libelous article, I instruct you that the plea of justification, if not sustained, — -that is, a claim, such as is made by the defendant in this case, that the charges in the article are true, — if the truth of those charges is not proved, is a matter which you may have to take in consideration as a cause for increasing the damages to be given to plaintiff.” ' ■
At the common law, notice of justification, and the failure to sustain it, were evidence of malice, and, by many authorities, conclusive evidence. The rule is so stated in Huson v. Dale,
*683 “ If the defendant in any action for slander, or for publishing a libel, shall give notice in his justification that the words spoken or published' were true, such notice, though not maintained by the evidence, shall not in any case be of itself proof of the malice charged in the declarаtion.” 2 How. Stat. § 7776.
The statute abolished the rule that an unmaintained plea of justification was proof of the malice charged. Counsel treat the word “proof,” used in the statute, the same as though it read “evidence.” “Proof” is that which convinces; “evidence” is that which tends to convince. We must assume that the legislature used the word in its well-understood definition. “Evidence is the medium оf proof; proof is the effect of evidence. ” People v. Beckwith,
Under the above instruction, however, the jury were permitted to consider the unsustained notice оf justifica, tion for the purpose of showing malice. The jury might, therefore, have put out of their consideration all the other facts and circumstances, and based a finding of malice аnd an increase of damages on this fact alone. We think the statute was designed to prevent such a result. The jury ought to be able to find that there was bad faith in giving notice of justification befоre they use that fact as evidence of malice. Distin v. Rose,
3. It is urged that the court permitted the jury to give exemplary damages. It would be necessary, perhaps, to disсuss this question,. if that were the fact. It is a fair inference, from the instructions given, that counsel in their arguments had spoken of exemplary or punitive damages. The judge said to the jury:
“There is no such thing as damage by way of example. There is no such thing in Michigan as a permission upon the part of the jury to add damages to what they find the plaintiff has actually suffered, by way of punishment, by way of еxample, or for any other purpose.”
It is impossible to conclude that the jury were permitted to find exemplary damages.
4. Error is assigned upon the instruction that there was no evidenсe that plaintiff had run away with Agnes Hartung, or had abandoned or failed to take care of his wife and family. The instruction was correct. There was no evidence to sustain either chargе. Plaintiff was at his work as usual; was at his home as usual; came home as uspal the night of the publication; and the record is barren of testimony that he failed to provide his wife and family with the support commensurate with his means. There was testimony of undue intimacy with Miss Hartung, but the record is barren of any evidence that they had eloped. An investigation by the reporter would have reveаled the facts, and undoubtedly have prevented the publication.
5. Several questions are raised upon the admission and rejection of evidence. We do not consider it importаnt to discuss fhem. The circuit judge gave a wide latitude to the defendant in inquiring into the relations between plaintiff and his wife, to show his character, and all the circumstances which could go in mitigation of damages. The trial was a long one. The cross-examination of plaintiff covers 60 pages. Nothing was excluded which would tend to show the truth of the charges made.
Judgment reversed, and new trial ordered.