46 Mich. 408 | Mich. | 1881
Sullings sued Shakespeare, who was publisher of the Kalamazoo Gazette, for publishing two alleged libels. One was claimed to be libelous because describing plaintiff as having performed a surgical operation by removing a “patty tuber” from the “hypogastrium” of one A. B. Smith. . The other contained an account of a ride taken by plaintiff in Kalamazoo written in a style tending to throw ridicule on plaintiff as displaying ostentation, and as not used to such indulgences.
The jury found a verdict for defendant. The case went throughout, and the charge also was based, on the theory that the articles unless in some way explained or accounted for were actionable. The chief objections to the rulings rest on the claim that as the case stood before the court they were too favorable to the defence. Before referring to the state of the issues and evidence a preliminary question arose concerning the jury.
The record shows that one juror who had an opinion that it would require evidence to remove was challenged, and the challenge was overruled, and then he was challenged peremptorily. But it appears further that when the trial was
A considerable number of objections assume that if an article is maliciously libelous, its truth alone will not be a defence. In this there is a confusion of civil and criminal remedies. In a criminal prosecution the truth alone, if not published with good motives and for justifiable ends, is not always a complete defence. But in civil cases it is well settled that no damages can be given fpr a libel that contains no falsehood. This disposes of the objections to a large amount of testimony concerning the circumstances of the second libel, which will be referred to more fully in its place.
At the beginning of the hearing, and before any proof of publication of the articles, an attempt was made to prove the circulation of the weekly edition of the Gazette, but the court refused to admit it at that time. The declaration did not aver publication in the weekly, and the offer was at least premature, and properly rejected.
After the articles were proven, an offer was made to prove the subsequent publication of the declaration, with head-notes referring solely to the attorney of plaintiff but not to the plaintiff. . The court excluded the head-notes. As they had no reference to plaintiff we do not think the exclusion erroneous. The declaration, setting out the obnoxious articles in full, was admitted to show repetition of the libels. This ruling was not injurious to plaintiff.
The court allowed defendant on cross-examination to explain that the article describing the surgical operation was not written by him. We can see no good reason for excluding this answer. Subsequently defendant testified fully on the subject and showed that the plaintiff wrote it himself and handed it to defendant with a desire that he should publish it, and it was accordingly handed over to the printers as it stood. There was evidence that it was very illegibly written, and there was no evidence of any intentional alteratioñ, and none, unless possibly by very remote inference, that there was any negligence. It was also testified by defendant that plaintiff complained to him of the error, but said if it could be corrected and put in the weekly he would be satisfied, and this was done. Plaintiff when put on the stand did not deny this, and was not examined at all concerning that article. There was no testimony whatever indicating what words had been altered in the article.
We think that this article could not under these circumstances go to the jury as a basis of damages. It does not occur to us that any necessary or natural inference would arise that the offensive words — which however^are not shown to have been so written as to put any one in fault — were any more than a printer’s blunder. We do not think a libelous meaning is apparent, although circumstances might put a different shade upon them.
Put the article being written by plaintiff as a gratuitous puff of himself, and published at his request, we do not see how a mistake of the printers without wrongful intent could be held a malicious libel. This is not a suit on the case for damage from negligence, and the law of libel does not we think reach such a blunder, if any was made.
We cannot forbear, in the interest of public morality, to call attention to the fact that the plaintiff, if a physician, has no right to publish matters of professional confidence, and that the article if published as he wrote it, without the approbation of the person operated on, would have been a
The matters included in the second article, which is undoubtedly written in a manner open to criticism, involve, first, matters of fact, and second, matters of comment. There was evidence to go to the jury on all the facts set forth in it, which were, whep reduced to their plain meaning, substantially these, viz.: That on the day previous the plaintiff, who was described with some superfluous initials and appendages, rode about town in an ostentatious style as the sole occupant of an elegant chariot. That he was expecting large profits from a suit with the Yulcanite Rubber Company. The comments, which were interspersed, intimated that the excursion was by way of practice and in anticipation of a more exalted station when more style would be necessary. The article also satirically denies the truth of some further parade, and intimates that it was the first ride he had ever taken.
However offensive the whole article might have been, it was unquestionably competent for the defendant to show that the facts alleged were true or that any part of them were true, and also how far their truth would leave any remaining cause of action. It was also proper to show under what circumstances the article was prepared and published.
Upon this the testimony was not contradictory as to the fact that on a mutual banter, the local editor of the Gazette agreed to pay and did pay the driver of the vehicle, if the plaintiff would ride in it. It is uncontradicted that he told plaintiff he proposed'to write an article on the subject, but there is a conflict as to plaintiff’s assent, and also as to the circumstances of the announcement. There was also evidence bearing on the Yulcanite litigation. Under these circumstances it is evident that plaintiff upon his own statement laid himself open to sharp comment, and upon defendant’s proofs there was evidence going far enough, if believed, to make out an assent to the publication.
Neither was the testimony as to his medical standing irrelevant. He made the injury to his medical character a ground of complaint. Moreover it may be remarked that the physicians who were put on the stand testified nothing to his discredit, and it is doubtful how far their testimony could be regarded as of any importance whatever.
The charge given to the jury was, we think, very fair and very explicit in granting all of the essential requests of the plaintiff except such as would have violated the rules before laid down. Nothing was excluded from consideration, and they were given full discretion on the subject of damages. It would have been misleading to give speculative charges on any theory that would have ignored the evidence; and it would have been erroneous to allow recovery for articles or parts of articles which were true. Beyond this we can discover no failure to present the plaintiff’s case in as strong a light as it could be placed.
The judgment must be affirmed with costs.
