McAllister v. Detroit Free Press Co.

• Decision Date: 11 October 1889
• Citation: 76 Mich. 338,43 N.W. 431
• Court: Michigan Supreme Court
• Parties: MCALLISTER v. DETROIT FREE PRESS CO.

43 N.W. 431

76 Mich. 338

MCALLISTER v. DETROIT FREE PRESS CO.

Supreme Court of Michigan

October 11, 1889

Appeal from circuit court, Wayne county; C.J. REILLY, Judge.

Corliss, Andrus & Leete, (Edwin F Conely, of counsel,) for appellant.

Fred A. Baker, for appellee.

MORSE J.

On Saturday, February 11, 1888, the plaintiff and one Lester B French, two reputable citizens of Detroit, crossed over to Windsor. French went to Windsor to dispose of about $27 of Canadian postage stamps which he had purchased of Dr. Kennedy, of Detroit. McAllister went with French because the latter asked him to, and did not know what was the object of French's visit. After they arrived at Windsor, they met a Mr. Ronald, who resided there, and walked up to the Manning House, which was soon to be opened, for the purpose of looking through it, having been invited to do so by Mr. Ronald. When they got there the house was locked, and Mr. Ronald had no key to it. From there they went to the post-office. French went to the stamp window, and asked the gentlemen there, who proved to be the assistant postmaster, if he would take some stamps "that had been sent to us on the other side;" told him that he got the stamps from a physician on this (American) side. The man said, (so French testifies, and it is not disputed:) "No, we cannot take them here;" and directed him to a book or stationery store a few doors below. McAllister stayed in the post-office until French was through, but did not know what the latter was doing. From the post-office they went to the book-store. French explained at this store how he came to have the stamps, and offered them for sale. The man at the store said he had so many on hand he could not use them, and directed French to another book-store. They then went to the second book-store, where French sold about $10 worth of stamps, at a discount of from 3 to 5 per cent. Before going to this store they stopped at another place, where French offered stamps for sale, but sold none. McAllister knew what French was doing after they left the post-office. French might have sold all his stamps at the book-store at 10 per cent. discount, but declined to do so. As they came out of this store, they were arrested and taken to jail by a policeman, accompanied by the assistant postmaster. McAllister wanted to know what the trouble was,- what they were arrested for,-but received no answer. French said: "If there is anything wrong, if you will take us to the telephone we will identify ourselves. Here is the man that owns the hotel. I can telephone to him. He is on the other side of the river, and will come over. I am well acquainted with the business men over there, and we will satisfy you that everything is all right." The officer answered: "That don't make any difference. Go with us, and we will take you to a telephone all right." They were not taken to a telephone, but to the jail, where they were searched, and everything taken from them. They told the officers that they lived in Detroit, and who they were. The effects upon them-letters, the monogram upon McAllister's watch, and a bankbook in the possession of McAllister-corroborated their story, but it was of no avail. The chief of police, Bains, came to them at the station, dressed in citizen's clothes, and asked French where he got the postage stamps. French asked him, "Who are you?" to which Bains replied, "None of your business." French then said, "Then it's none of your business where I got them." Thereupon Bains fell into a passion, and locked them up in different cells. After they were locked up, Bains asked them who they were, and if they knew any one in Detroit. McAllister told him where he lived, that he boarded at the Antisdel House, but had been away from there. He wished to send for Mr. Andrus, his attorney, but this was denied him. Bains asked, "Do you know any detective in Detroit?" They could not think of any, and then Bains said, "If you don't know any detective in Detroit, you don't live there," and went away. They were put in jail about half past 12, and remained there until about 7 P. M. About 3 P. M., Detectives McDonell and Noble came over from Detroit, and were asked if they knew them, and McDonell said he knew McAllister well, and related that when McAllister's house was robbed he looked up the case for him. He also said that he had seen Mr. French, but could not place him, but knew his face well. McAllister said to Bains: "You have found nothing at all suspicious on me. Can't you let us sit in the office, instead of putting us in the cell again?" But Bains said: "No; you go right back in there." He refused to let them occupy the same cell. French told Bains that he got the stamps of Dr. Kennedy. Bains came in at one time with a piece of paper in his hand, and said: "French, you are a liar. I have telegraphed to Dr. Kennedy, and he says he don't know you." Bains let French go to the telephone at one time, but for some reason he could not get Detroit; and Bains said: "Come away from there. I guess you don't want to see them very bad, anyway."

It seems that Mr. Wigle, the postmaster, made a complaint before Alexander Bartlett, the police magistrate at Windsor, against French and McAllister, for the unlawful sale of postage stamps, under a Canadian statute reading as follows: "No person other than a postmaster shall exercise the business of selling postage stamps or stamped envelopes to the public, unless duly licensed to do so by the postmaster general, and under such conditions as he prescribes; and every person who violates this provision by selling postage stamps or stamped envelopes to the public, without a license from the postmaster general, shall, on summary conviction, incur a penalty not exceeding $40 for each offense." 38 Vic. c. 7, � 74, being Rev. St. Can. c. 35, � 106. Neither French nor McAllister had any knowledge of this statute, or that they were doing anything wrong in selling or offering these stamps for sale. The complaint was read to French and McAllister, who were taken before the magistrate for that purpose; but the magistrate swears that Mr. Wigle was convinced by the time the complaint was read that they were innocent of any intentional violation of the law, and withdrew it. No complaint was made against them for any other offense. There was some talk between Mr. Wigle and the magistrate about the robbery of a post-office at Bothwell, Ont. The magistrate could not swear that the chief of police informed him that he suspected these men of that robbery, but thinks it quite probable that he did. There was, the magistrate says, no hearing or adjournment on the complaint made by Wigle. Wigle withdrew it, and that was the end of it, as far as the magistrate was concerned. It was withdrawn between 3 and 4 o'clock P. M. But Mr. Bains, as they testify, kept these men incarcerated until after 6 o'clock P. M., and told them then that he was not quite satisfied, but they could go if they would come back at 9 A. M. on Monday. On Monday they went over, and were told they were not wanted. Bains swears that he did not require them to return on Monday, but released them unconditionally. While in Canada, French and McAllister received no intimation from any one that they were suspected of the Bothwell robbery, and knew nothing about it.

The Detroit Free Press (daily) on Sunday, February 12, 1888 contained a number of items of news under the heading of "Windsor." In these items, and the third one in the list, appeared the following: "A week ago, it will be remembered that a safe was cracked in Bothwell, and that $2,000 in money and about $30 worth of stamps were stolen. Yesterday two hard-looking citizens canvassed the entire business part of Windsor, in the effort to sell stamps at half price. They at last tried to sell the stamps to Postmaster Wigle, who had them arrested. They were searched at the station, and upon one of them was found $30 worth of stamps. They gave their names as Edward H. McAllister and Lester B. French. Chief Bains will hold them to await developments." On Tuesday, the 14th of February, 1888, under the heading of "Windsor," the Daily Free Press published, with other items of news, the following: "Edward H. McAllister and Lester B. French, the men who were arrested on Saturday for trying to dispose of stamps at half price, have been released, as there was no evidence to show that they were the men who were wanted at Bothwell." It is not shown that the Free Press ever made any other or further allusion to the matter. The plaintiff brought suit against the Free Press Company for libel, declaring upon the first publication. The defendant pleaded the general issue, and gave notice that on the 4th day of February, 1888, the post-office building at Bothwell, Ont., was feloniously broken into and entered by a person or persons unknown, who did then and there steal Canadian postage stamps of the value of $30, and also money, jewelry, goods, and other personal property of the value of $200; and that on the 11th day of February, 1888, the plaintiff went to Windsor, with a companion, and offered for sale a quantity of Canadian postage stamps, of the value of about $30, and that among other persons to whom he offered them was the assistant postmaster at Windsor. That said assistant postmaster reported the facts of said burglary and larceny at Bothwell, and the attempt of said plaintiff and his companion to sell about the same quantity of postage stamps, to a police officer at Windsor. That upon such information said police officer had reasonable cause to suspect the said plaintiff and his companion to have been guilty of the felony aforesaid; and that thereupon the said police officer, by virtue of his power as such officer, arrested the said pla...