Brewer v. Chase

• Decision Date: 17 October 1899
• Court: Michigan Supreme Court
• Parties: BREWER v. CHASE.

80 N.W. 575

121 Mich. 526

BREWER v. CHASE.

Supreme Court of Michigan

October 17, 1899

Error to circuit court, Livingston county; Stearns F. Smith, Judge.

Action by Thomas W. Brewer against Almon L. Chase. There was a judgment for defendant, and plaintiff brings error. Reversed.

B. T. O. Clark and Shields & Shields, for appellant.

William P. Van Winkle, Louis E. Howlett, and Henry C. Smith, for appellee.

HOOKER J.

The plaintiff is the publisher and proprietor of a newspaper named the Livingston Herald. His action is for libel, based upon an article published in the Livingston Republican at the instigation of the defendant, and over his signature. The defendant filed a plea of the general issue, accompanied by a notice that he would prove the truth of the several charges as made. A verdict of not guilty was returned, and the plaintiff has brought error.

We think the article libelous per se, as it charges the plaintiff with having committed several crimes and disgraceful and degrading acts. While the article does not state explicitly that the plaintiff had committed these acts, it says that the author was informed that he had done so, and that witnesses had so testified, and that records showed that the plaintiff had been arrested for crime. The substance of the charge is that the acts were committed, and the author cannot shelter himself by showing that he only said what he had heard. The authorities are harmonious that such statements are merely repetitions of the charge, and none the less so because the statement was that another had made such charge. In Newell, Sland. & L. p. 350, it is said that: 'Every repetition of a slander originated by a third person is a willful publication of it, rendering the person so repeating it liable to an action. 'Tale-bearers are as bad as tale-makers.' And it is no defense that the speaker did not originate the scandal, but heard it from another, even though it was a current rumor, and he in good faith believed it to be true. Nor is it any defense that the speaker at the time named the person from whom he heard the scandal. A man cannot say 'There is a story in circulation that A. poisoned his wife,' or 'B. picked C.'s pocket in the omnibus,' or that 'D. has committed adultery,' and relate the story, and, when called upon to answer, say 'There was such a story in circulation. I but repeated what I heard, and had no design to circulate it or confirm it;' and for two very plain reasons: (1) The repetition of the story must, in the very nature of things, give it currency; and (2) the repetition without the expression of disbelief will confirm it. The danger--an obvious one--is that bad men may give currency to slanderous reports, and then find in that currency their own protection from the just consequence of a repeition.' In a Massachusetts case (Kenney v. McLaughlin, 5 Gray, 3) cited by Newell, the trial court instructed the jury that: 'If the defendant merely said there was a report in circulation of the kind set forth in the writ, and did not say so with any design to extend its circulation, or in any degree to cause the person whom she addressed to believe or suspect the charge which the story imported to be true, or to add to it any sanction or authority of her own, or to give it any further circulation or credit, and it was true that such story was in circulation, it would not be actionable to say so.' The appellate court reversed the judgment, saying: 'The story uttered or repeated by the defendant contained a charge against the plaintiff of a nature to destroy her reputation. It is no answer in any forum to say that she only repeated the story as she heard it. If it was false and slanderous she must repeat it at her peril. There is safety in no other rule.' In Watkin v. Hall, L. R. 3 Q. B. 396, it was held that if A. said of X. that he was a thief, and C. publishes that A. said that X. was a thief, in a certain sense C. would publish the truth, but not in a sense that would constitute a defense. C.'s publication would in fact be but a repetition of A.'s words. In Odgers, Sland. & L. p. 173, it is said: 'This rule that the whole of the libel must be justified to enable the defendant to succeed applies to all cases of reported speeches or repetitions of slander. Thus, if the libel complained of be, 'A. B. said that the plaintiff had been guilty of fraud,' etc., it is of no avail to plead the A. B. did in fact make that statement on the occasion specified. Each repetition is a fresh defamation, and the defendant, by repeating A. B.'s words, has made them his own, and is legally as liable as if he had invented the story himself. The only plea of justification which will be in answer to the action must not merely allege that A. B. did in fact say so, but must go on to aver with all necessary particularity that every word which A. B. is reported to have said is true in substance and in fact. In short, a previous publication by another of the same defamatory words is no justification for their repetition.'

We cannot say that the evidence did not warrant this verdict, because we have not all of the testimony before us. An examination of the charge leads us to believe that the jury may have based the verdict on a belief of the literal truth of the language used in the article sued upon as a full justification. The charge consisted mainly of requests. The following request of the defendant was given: 'I charge you the plaintiff cannot recover if you are satisfied that the defendant has fairly established the truth of the publication sued upon substantially as the publication is set forth in the plaintiff's declaration; that is, as I understand it, the reputation of the alleged libelous article as shown by the paper published.' By this the jury might well conclude that it was unnecessary for the defendant to show that the plaintiff had been guilty of the acts charged, and that it was sufficient to find that he had been accused of them. This would not be proof of the substance of the charge, and would not constitute a justification. Again, one of the plaintiff's requests was to the effect that the article was libelous per se. The court properly gave this. But this was followed by a series of requests, covering nearly every charge contained in the article, of which the following is a sample: 'In considering this article you should consider the whole together, and if, from all the statements in this article, you do not believe that an ordinary person reading the same would fairly understand that defendant intended to charge that plaintiff had been guilty tended to charge that plaintiff had been guilty of burglary, then the plaintiff cannot recover that the article was libelous per se, the court allowed them to find that it was not libelous. As we have said, we consider the article libelous per se, and it follows that the jury should not have been permitted to say that it was not. The questions to be submitted to them were: (1) The truth or falsity of the statements; (2) the question of damages.

The record is a long one and many questions are raised. In view of a possible retrial of the case we should perhaps refer to some of them. The plaintiff called one Barnes, by whom he proved that the defendant caused the publication of the article in the newspaper of the witness. He also gave some testimony regarding the circulation of his paper. His entire direct testimony appears upon a single page of the record. Upon cross-examination the defense proved the previous publication of a series of articles in plaintiff's paper, and the opinion of the witness that they led to the publication sued upon, and introduced the articles in evidence. The witness was then permitted to testify at length as to current reports regarding the plaintiff in relation to the charges contained in the article sued upon, viz. that the plaintiff had been arrested for burglary at the expense of the taxpayers, and that he had heard a witness testify in justice court that plaintiff had committed a forgery, and that he embezzled property, and about the arrest of the plaintiff for trouble with a woman. In short, he was allowed to testify to all sorts of rumors, and to follow it up by stating that, in his opinion, the trial for assault and battery 'showed plaintiff up pretty dark.' He was also allowed to state that these various reports were published from time to time in his paper, and circulated, and the papers were introduced in evidence. We think it much more orderly for a special defense like that of truth in an action for libel to be made by the defense after the plaintiff's case is closed. But, whether it may be gone into on cross-examination or not, it was not competent to enter upon a general inquiry regarding rumors and publications and testimony upon other trials, and the opinion of the witness as to the effect upon plaintiff's character. Again, if the defendant desired to show that he published an article upon information and an honest belief of truth, the natural course would be to show in an orderly way his information, and his reliance upon it, and the rectitude of his intentions, rather than to enter upon a general investigation of plaintiff's history, and the opinion of members of the public regarding it. Wolff v. Smith, 112 Mich. 360, 70 N.W. 1010.

The claim is made that the publication was privileged. The libel complained of charged defendant with corruption in office. To repel that statement, the defendant undertook to show that the plaintiff was an impostor, and really had no interest in the public welfare, by showing his past acts and history, asserting that the only thing of which he could boast was that he had always escaped the vigilance of the law. Proceeding, he said: (1) That the records showed...