Scripps v. Foster

• Citation: 41 Mich. 742,3 N.W. 216
• Court: Supreme Court of Michigan
• Decision Date: 28 October 1879
• Parties: JAMES E. SCRIPPS v. GEORGE B. FOSTER.

3 N.W. 216

41 Mich. 742

JAMES E. SCRIPPS v. GEORGE B. FOSTER.

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.

Griffin & Dickinson, for defendant in error.

MARSTON J.

This action was brought to recover damages sustained on account of the publication of an 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.

The evidence offered was excluded, and, in order to fully and properly understand the bearing and probable effect of the evidence offered, it might be well to look at the nature of the article complained of.

It stated that the common council had made an appropriation of money and ordered a general vaccination throughout the city; that the Evening News had cautioned the authorities and people generally against too hasty action in the matter; that the wisdom of compulsory vaccination was doubted by many of the best physicians, not so much from a lack of confidence in the efficiency of vaccination, as from a fear that it might not be properly done; that the board of health had taken into consideration the two principal sources of danger likely to accompany a general vaccination, that of the use of impure virus and that of the use of improper implements in applying it, and had ordered that the operation should be performed in a certain way which precluded the use of the trocar.

The article then set forth that most of the physicians had acted under the instructions of the board of health; that several who thought they could make more money by ignoring the rule did so, notably Dr. Foster, the physician of the second district, who preferred to use the trocar, with which he was enabled to perform vaccinations at the rate of one hundred a day, instead of the twenty or thirty which would have been possible with the proper instrument; that he had persisted in his course, arguing that the trocar was a proper and safe instrument to use. It then in effect charged him with causing the death of the infant son of Mrs. Connelly; that the operation was vaccination--the instrument the trocar; also the sickness of two other children; that scarlet fever had been introduced into their systems by Dr. Foster's trocar, which had probably a few hours before pierced the arm of some scarlet fever patient in some remote part of the city. This statement will be sufficient for the purposes of the present case. Evidence was introduced tending to prove that the reporter who prepared the article had assured the defendant that every word in it was correct, and that defendant so believed.

From the statement thus made it appears that the prevalence of small-pox in the city of Detroit was causing alarm, and that official...