73 Mich. 563 | Mich. | 1889
Plaintiff sued defendant for verbal slander, charging him with having on May 25, 1886, on Croghan
“‘Mrs. Stenius, never mind me, I am Mr. Ritchie. Mr. Stenius knows me.’ I said I did not know him. He said Johnnie had broken a mirror in his saloon. ‘I am going to take him.’ Johnnie ran into the dining-room, and locked himself in. Ritchie bumped on the knob on the door, and told him to open it, and he said he would not. I said, ‘Don’t break down the door/ He said, ‘I will break down the door, or arrest you for harboring the boy.’ I was scared, and said, ‘Mr. Ritchie, walk out of my house.’ He says, ‘All right; I will go and fetch the patrol, and take both of you.’ I told Johnnie to open the door, which he did, and Mr. Ritchie rushed in and took him out. In the struggle Mr. Ritchie bumped me against the, sink. I was badly frightened. About 5 or 10 minutes after, Mr. Stenius came in. I was laying down very much frightened. P*565 felt sick. I told him Mr. Ritchie and Johnnie Cody had been there and frightened me. That was all I told him. He walked right out. He said he was going to .see what was the matter.”
The defendant was sworn in his own behalf, and testified that when he came home he noticed something was the matter with his wife, and asked her what it was; that she was very nervous and frightened, and said a man had been there and nearly frightened the life out of her; that she said it was Ritchie; that he was excited, and went out and over to Ritchie’s and told him,—
“ ‘ I understand you have been over to my house, and nearly scared the life out of my wife'.’ He says, ‘You are a liar.’ I says, ‘ I am told, and I came to find out.’ He says, ‘You are a damn liar.’ I says, ‘I am not.’ He says, ‘Do you want to buy anything?’ I said, ‘No; I came for information, and you have abused me.’ Then he ordered me to get out, and put his fist in my face. He followed me out on the walk, and clinched his fist, and said, ‘You are an insignificant, low man.’ I said, ‘ I am not as low as you are. Whatever I get I get honestly.’ When he abused me I got mad. I shook my fist in Ritchie’s face, and he did his in mine, many times.”
Defendant claims that this was about the extent of the word's used; that he was very much excited, but not so much so but that he remembered what took place.
The plaintiff, being sworn in his own behalf, testified, .substantially, that defendant came into his saloon about •6 or 7 o’clock on that day, put his fist in his face, and called him a son of a bitch, a thief, a rogue, and a robber, and said he could prove it; that he put him oirt, ■and shut the door, when he again said, “ You are a thief, a rogue, and a robber, and I can prove it;” that he talked in a loud voice, and over 30 people heard him. Several witnesses were sworn and examined upon either side of the case; the testimony of some tending to support the
The declaration charges the slanderous words to' have-been spoken in front of plaintiff’s saloon on Croghan street. Some confusion arises in the record in determining what was said in the saloon, and what took place after the parties had reached the street in front of the saloon; some of the witnesses hearing only what took place in front of the saloon, and others hearing the talk in the saloon. The court, however, in its charge, limited,, very properly, the case to the words spoken in front of the saloon, and upon this question the testimony is contradictory. The court, among other things, instructed the jury:
“The burden is upon the plaintiff to show, by a preponderance of testimony, that the defendant used the slanderous words charged in the declaration on his part, in front of plaintiff’s saloon. Unless you find he did so, your verdict must be for the defendant; and if you find that he did use the words charged in the declaration, but that they were the mere outburst of excitement and passion, induced by the conduct and actions of the plaintiff at defendant’s house and in plaintiff’s saloon, and were-not intended to charge the plaintiff with the commission of a crime, and if those who heard them did not understand that they charged the commission of a crime, but. were produced by the result of the excitement so produced, your verdict must be for defendant. It must be shown in this connection, gentlemen, that the defendant knew of the acts of the plaintiff which are relied upon in mitigation at the time he used the words charged, o.r the jury cannot consider them at all.”
The main question in this case for consideration arises under this part of the charge of the court. Under the circumstances here stated, is this charge justified? It is evident that the defendant was laboring under a high state of excitement when he left his house to visit the plaintiff’s place of business. He found his wife laboring
The general rule is- that, in this form of action, whatever may have occurred at or near the time as a provocation for the speaking of the words may be given in evidence in mitigation of damages. It is said, as a ground of provocation for an attack either upon >the person or the character of an individual, whatever took place at the time may be given in evidence by the defendant in mitigation of damages; for the law makes allowances for the infirmities of human nature, and for what is done in
Under the circumstances here shown, we think it was a question for the jury to determine whether the defendant, if he spoke the words charged, intended to impute .a crime to the plaintiff, or that he spoke them in the 'heat of passion, induced by the conduct of the plaintiff, and without deliberation, not intending to impute a crime. The case was very properly submitted to the jury on that theory of the case.
Error is also assigned upon another portion of the .charge of the court, in which the court said:
“Now, in conclusion, as bearing upon the provocation •of defendant, I charge you that the plaintiff had no right to arrest the boy in the defendant’s house, and that his*569 ■entering into defendant’s house for that purpose was a trespass on defendant’s rights.”
In this statement the court was speaking to the jury ■on the question of mitigation of damages, and that these were questions that might be considered in mitigation. Whether the entry of plaintiff into the house of defendant was lawful or not can matter but little. It was the ■effect such entry produced on the mind of defendant that was important. He evidently viewed it as a great wrong. He found his wife suffering from it, and attempted to get an explanation, and, instead, got from the plaintiff only additional abuse and insult. The fact of the entry and the conduct of plaintiff only become material as showing that the words were spoken in the heat of passion, and not from deliberation, and' as tending to rebut the presumption of malice. We find no error in the charge.
Counsel for plaintiff makes some contention in his brief that the jury were prejudiced by the remarks of counsel for defendant, during the trial, in his offer of testimony. It appears that, upon the cross-examination of the plaintiff, counsel for defendant offered to show by him that the next morning after the mirror was broken the mother of John Cody came to him, and paid him $45 for the mirror, and took a receipt therefor, the plaintiff agreeing that he would not appear and prosecute the boy in the police court; that on the next morning the mother went to the police court, and found the plaintiff there prosecuting the case; that when she made known to Justice Miner the fact of the payment of $45, the justice compelled the plaintiff to refund to her $35 of the money. It was proposed to show this by the cross-examination of the plaintiff. This the court excluded. Plaintiff’s counsel contends, however, that the proposition made, and the remarks of counsel thereon, had great weight with the jury, and that plaintiff was prejudiced in his case, even
We find no error in the record, and the judgment must be affirmed, with costs.