Scripps v. Reilly

• Decision Date: 08 January 1878
• Citation: 38 Mich. 10
• Court: Michigan Supreme Court
• Parties: James E. Scripps v. Cornelius J. Reilly

38 Mich. 10

James E. Scripps v. Cornelius J. Reilly

Supreme Court of Michigan

January 8, 1878

Submitted October 4, 1877; October 5, 1877 [Syllabus Material]

Error to Superior Court of Detroit.

Libel. Reilly sued Scripps, who was the principal proprietor of a newspaper called The Evening News, for publishing therein a scurrilous article purporting to give the substance of a bill of complaint filed against a third party and seriously implicating Reilly. He recovered a verdict of $ 4,500 damages, but judgment was reversed by the Supreme Court ( Scripps v. Reilly, 35 Mich. 371) and a new trial ordered. Upon the second trial, which is reviewed in this opinion, Reilly recovered a verdict for $ 5,000 and Scripps again brought error.

Judgment reversed, and a new trial ordered.

M. E Crofoot and C. I. Walker for plaintiff in error. The question whether a libel is privileged is one of fact, Gassett v. Gilbert, 6 Gray 94; Barrows v. Bell, 7 Gray 315; Hoare v. Silverlock, 9 M. G. & S., 24. As to privileged communications, see Stiles v. Nokes, 7 East, 493; Curry v. Walter, 1 B. & P., 525; Rex v. Wright, 8 Term Rep., 298; Ryalls v. Leader, L. R. 1 Ex. 298; Lewis v. Levy, E. B. & E., 536; Wason v. Walter, L. R., 4 Q. B., 86; Kidder v. Parkhurst, 3 Allen 393. Damages are not allowed for injury to the feelings except where the wrong is marked by malice, fraud, oppression or gross negligence (Detroit Post v. McArthur, 16 Mich. 454; Schwoerer v. Boylston Market Ass'n, 99 Mass. 285; Wilson v. Young, 31 Wis. 582; Milwaukee R. R. v. Arms, 91 U.S. 489) instead of mere heedlessness (Moore v. Bowman, 47 N. H., 494), nor are they given by way of punishment where the wrong is criminal, Austin v. Wilson, 4 Cush. 273; Taylor v. Carpenter, 2 W. & M., 22; Fay v. Parker, 53 N. H., 372.

Griffin & Dickinson, G. V. N. Lothrop and J. Logan Chipman for defendant in error. Peremptory challenges can be made until the jury is sworn, Hunter v. Parsons, 22 Mich. 96; Jhons v. People, 25 Mich. 499. The publication of ex parte proceedings is not privileged, Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549; Rex v. Lee, 5 Esp. 123; Rex v. Fisher, 2 Camp. 563; Duncan v. Thwaites, 3 B. & C., 556; Delegal v. Highley, 3 Bing. (N. C.), 950; Stanley v. Webb, 4 Sandf. 28; Matthews v. Beach, 5 Sandf. 264; Behrens v. Allen, 3 Fost. & Fin., 135: per contra, Smith v. Scott, 2 C. & K., 580; Ackerman v. Jones, 37 N. Y. Sup'r Ct. Rep., 42. But the person libelled must be one whose character is of general public interest, Purcell v. Sowler, 1 C. P. D., 781. The fact of privilege only rebuts the prima facie inference of malice and requires it to be proved, Wright v. Woodgate, 2 C. M. & R., 577; Townshend on Libel, § 209; Cooley's Const. Lim., 449; it is limited to the subject matter of the report and the manner of reporting, and even then it is for the court to consider whether it was lawful to publish the communication, Flint v. Pike, 4 B. & C., 473; Thomas v. Croswell, 7 Johns. 271; Moffatt v. Cauldwell, 3 Hun 26; Cooper v. Greeley, 1 Den. 358; Fry v. Bennett, 28 N. Y., 324; Com. v. Blanding, 3 Pick. 304; Usher v. Severance, 20 Me. 9; Pittock v. O'Niell, 63 Penn. St., 253; Edsall v. Brooks, 2 Robert. 29; White v. Nicholls, 3 How. 288; the libelous character of a newspaper article is a question of law for the court, Lewis v. Clement, 3 B. & A., 702; Saunders v. Baxter, 6 Heisk. 369; Hunt v. Bennett, 19 N. Y., 173; State v. Jeandell, 5 Harring. (Del.), 475; Roberts v. Brown, 10 Bing. 519.

OPINION

Marston, J.

When this case was before the court at a former term, several questions were then disposed of, and the facts were so fully stated in the opinion of the court that no extended reference to them will be necessary in the present case. The errors assigned will be noticed in their order.

I. That the court erred in permitting the plaintiff to challenge a juror after the defendant had exhausted his peremptory challenges.

After the jurors had been called, counsel for plaintiff challenged some of them peremptorily, and some for cause, and then announced himself satisfied. Defendant's counsel then challenged some of them for cause, and also exhausted his peremptory challenges, and expressed satisfaction. Counsel for plaintiff then desired to challenge one of the jurors, who was upon the panel when he first expressed himself as satisfied. This, counsel for defendant objected to, the court overruled the objection, and defendant excepted. The juror was sworn, examined, and excluded for cause.

This question is clearly covered by former decisions in this court. Whether counsel for the different parties have exhausted their peremptory challenges, and announced themselves satisfied with the jury or not, they have undoubtedly the right, certainly up to the time when the jury is sworn, to make further challenges for cause. It is the aim and policy of the law to have a fair and impartial jury, and to this end it would be the clear duty of the court, up to the last minute, to permit counsel to further examine the jurors. It is possible, as argued in this case, that this privilege may be abused by counsel. This is true; but we think, under the watchful care of the trial court, there is not much danger in this direction, and there certainly is nothing in this case indicating in the slightest degree a want of good faith on the part of counsel. Hunter v. Parsons, 22 Mich. 96; Jhons v. The People, 25 Mich. 499; Atlas Mining Co. v. Johnston, 23 Mich. 36.

II. That the court erred in allowing counsel for the plaintiff to offer successively in evidence a large number of articles published in The Evening News, subsequent to the time of the publication of the article complained of, and this after articles of the same character, and offered for the same purpose, had been ruled out.

These articles under the previous decision were not admissible. Counsel in offering the first article admitted that it was he thought, covered by the previous ruling, but offered it as he desired a distinct ruling of the court below thereon. This he undoubtedly was justified in doing, and in a case of doubt as to the form of the offer, counsel would have a right to vary it, or offer it in connection with other matters, for the purpose of distinctly raising beyond doubt the particular question desired. When, however, this object was accomplished by the offer and rejection, counsel should not offer similar articles clearly covered by the same ruling. Beyond what we have already stated, we can see no good reason for so doing. Once offered in proper form, a ruling thereon and an exception thereto taken, the question may be passed upon in the court of review as fully and completely as though an infinite number of exceptions had been taken covering the same point. If counsel proceed beyond this and make the offers in the presence and hearing of the jury, and the court permits them to be made in this manner, the character of the offers so made may be such, even although they were rejected below, as to require on error a reversal of the judgment, where the party making such rejected offers obtains a verdict and judgment in the case. Everything having a tendency to prejudice or influence a jury in their deliberations which is not legally admissible in evidence on the trial of the cause, should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be, or how carefully he may have been instructed by the court to not permit such incompetent matters to influence him, or have any bearing in the case, it will be very difficult, if not impossible, for him to separate the competent from the incompetent, or to say to what extent his impressions or convictions may be attributed to that which properly should not have been permitted to come to his knowledge. But whatever the reason for the rule may be, all courts agree in excluding incompetent testimony, and that an error in this respect will be sufficient cause for reversal. This rule would be but slight protection if counsel or witnesses could be permitted to make a statement, but not under oath, of the incompetent testimony, or counsel state the same fully to the jury in their argument or otherwise. The essence of the wrong consists in the fact that such incompetent testimony is brought to the attention of the jury, more than in the method adopted in communicating the fact. No matter how the information is derived, the result is the same. In this case after counsel had obtained a clear and distinct ruling of the court as to the inadmissibility of a certain class of articles, a large number of the same class were offered, and in making each separate offer, counsel stated the purport of the article or read the headings. This course was objected to, but permitted by the court, and the articles offered were all excluded, the objection as to their admissibility having been sustained. We think the course adopted was not correct, and that, although perhaps not fully covered by the letter of the previous decision in this case, yet that it comes clearly within the reason and spirit of the rules there laid down. Where the offer is likely to be of such a character that it would have a tendency to prejudice or influence the jury, the correct practice would be to present the article, if in writing, to the court and counsel for examination, without stating either the purport or substance of it. The cases are but few where such objectionable articles are likely to come up on the trial, and when such a case arises, the good sense of court and counsel will...