3 N.W. 216 (Mich. 1879), Scripps v. Foster

Citation:3 N.W. 216, 41 Mich. 742
Opinion Judge:MARSTON, J. CAMPBELL, C.J.
Attorney:Henry W. Montrose and C.I. Walker, for plaintiff in error. [41 Mich. 743] Griffin & Dickinson, for defendant in error.
Judge Panel:(GRAVES and COOLEY, JJ., concurred.)
Case Date:October 28, 1879
Court:Supreme Court of Michigan

Page 216

3 N.W. 216 (Mich. 1879)

41 Mich. 742




Supreme Court of Michigan

October 28, 1879

Where an article claimed as libelous is one of a series that has been published--is one of a series, or part of a discussion on the same subject--the defendant may, for the purpose of defeating exemplary damages, introduce the whole series. At a time when excitement prevailed in regard to small-pox, and the authorities had ordered a general vaccination, and in regard to which and the use of the trocar in such operation there had been considerable discussion, and the use of such instrument condemned by some, the article complained of as libelous was published. It charged plaintiff, a city physician, with using it, and by reason thereof causing the death of one child and the serious illness of others. Held, that it was proper, to prevent or mitigate exemplary damages, to show a declaration of the plaintiff before the publication, defending the use of the trocar, as was also the entire series of articles published in the discussion at the time in regard to the use of such instrument. In this state, in an action of libel, defendant may, in mitigation of exemplary damages, show any fact or circumstance tending to show that in publishing the libelous article he acted in good faith, and that after using all proper precautions, he had good cause to believe the statement to be true. Section 5943, C.L., prohibiting disclosure by a physician of information received in a professional capacity, is a personal privilege of the patient, and for his protection.

Error to superior court of Detroit.

Henry W. Montrose and C.I. Walker, for plaintiff in error.

[41 Mich. 743] Griffin & Dickinson, for defendant in error.


This action was brought to recover damages sustained on account of the publication of an [41 Mich. 744] article concerning the plaintiff, Foster, in the performance of his duties as city physician.

The defendant offered in evidence certain articles published in the Evening News, discussing the subject of small-pox and compulsory vaccination, and pointing out precautions to be observed by both the citizens and the vaccinating physician. Defendant's counsel also offered in evidence the proceedings of the common council of the city of Detroit, and of the Detroit board of health, also a petition of the physicians of Detroit, all pertaining to the same matter. The defendant was examined as a witness in his own behalf. He was asked: "What do you know of Dr. Foster being at your office previous to this publication, and defending the use of the trocar?" This evidence was offered, not in justification, but to prevent or limit in amount the recovery of exemplary damages which were claimed. It is conceded that this evidence would not have been admissible in the case for any other purpose, as, under the evidence, plaintiff was entitled to recover actual compensatory damages.

Page 217

The evidence offered was excluded, and, in order to fully and...

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