144 Mich. 667 | Mich. | 1906
This case is before us for the second time. 140 Mich. 472. A further statement than is there found is unnecessary. A second trial resulted in a verdict for
1. It is now urged, as it was upon the former trial, that there was no evidence to show malice on the part of Mr. Haven. Without entering into a detail of the evidence, we are satisfied that this question was properly left to the jury. Mr. Haven was not a witness in his own behalf. There was testimony that three of the charges made were false, and we think there was sufficient evidence from which the jury might question his good faith in the matter.
%. Before giving any evidence to connect Mrs. Haven with the publication of the libelous letter, plaintiff was allowed to introduce very damaging statements made by her and also evidence of her conduct towards him. This evidence was continued all through the trial, even after the judge had intimated that there was nothing to connect MrS. Haven with the publication. We held in the former opinion that Mr. Haven was not responsible for the acts and statements of his wife. . This evidence was of such a character that we cannot hold that the error was cured by the order of the court at the close of the trial in striking the testimony out and instructing the jury not to regard it. The evidence of any statements made by Mr. Haven or of his conduct towards plaintiff tending to show actual malice is rather meager. Mr. Haven and other members of the church objected to the plaintiff’s marrying a couple, one of whom had been divorced. Plaintiff testified that about the same time he had a conversation with Mr. Haven’s father in regard to dividing his property among his children, and that he advised the father, in the pres
‘ ‘ Did you at any time before this suit was started against Mr. and Mrs. Haven, hear her say anything in reference to Mrs. Konkle having an abortion performed ?
“A. I don’t think that Mrs. Haven stated that to be the fact, she merely intimated it.”'
Counsel then pursued the matter further and elicited the following:
“A. Mrs. Konkle was not in Bloomingdale at the time this conversation took place. She was away visiting, if I remember right. Something was said. Mrs. Haven — I can’t remember which of us stated, spoke of Mrs. Konkle’s condition at that time. She was in a delicate condition at the time, and Mrs. Haven stated that she — we were speaking about something — I don’t remember exactly how it was. Any way Mrs. Haven stated that she had heard it rumored or understood that she was over it at this time.
“ Q. Say anything with reference — connect anybody’s name with it, or anything ?
“A. I think she did.
“Q. Whose?
“A. Dr. Ransome’s.”
Plaintiff was also permitted to testify to a conversation with Mrs. Haven. It was the duty of the court to exclude
3. We held on the former hearing that the defendant was not responsible for the" publication of the letter made by the plaintiff himself, and that he could not recover damages for such publication. He read the letter from his pulpit in the church at Bloomingdale. The court below did not instruct the jury that the plaintiff could not recover, damages for any publication made by himself, and it does not appear that any request was made to do so. The court was requested to instruct the jury that “ the defendant is not responsible and cannot be held liable for the publication of this letter at Bloomingdale.”
It is claimed on behalf of plaintiff that there was evidence that this letter was published at Bloomingdale aside from the publication made by the plaintiff himself. The only evidence cited to maintain this claim is the deposition of one Dougal Thompson, taken at Hillsburg, in Canada. This witness testified that the letter was received by one McMillan, a member of the church at Hills-burg. The church board was convened and the letter evidently placed before it. Mr. Thompson testified:
“I was instructed by the secretary of the church board to write to the officers of the church board at Bloomingdale, and received letters from them.”
This testimony is not evidence of a publication of the libelous letter at Bloomingdale. .It is not stated that the letter or a copy of it was sent to Bloomingdale, or that its contents were stated in the letters written by the witness, or that the name of the defendant was mentioned in the letter written by Thompson. He may have written simply to ascertain more about the character of Mr. Konkle, without any reference whatever to the letter they had received. Upon this record, we think this instruction should have been given.
Judgment reversed, and new trial ordered.