Atkinson v. Detroit Free Press Co.

• Decision Date: 29 June 1881
• Citation: 46 Mich. 341,9 N.W. 501
• Court: Michigan Supreme Court
• Parties: ATKINSON v. THE DETROIT FREE PRESS COMPANY.

9 N.W. 501

46 Mich. 341

ATKINSON v. THE DETROIT FREE PRESS COMPANY.

Supreme Court of Michigan

June 29, 1881

Where in case of libel, there is no defence but the general issue the language may be shown to fairly bear a mitigated sense but where there is a general justification the defence will not be made out unless the evidence clearly establishes the truth of the facts as alleged in the declaration, with the meaning therein averred, unless with the aid of the colloquium such meaning is repugnant. The truth of one portion of a libel will not prevent a recovery for the untruth of another portion, but the plaintiff is entitled to recover damages for every material item of defamation not fully justified. Giving defamatory statements us coming from others does not deprive them of their defamatory character. Truth of facts not charged against the plaintiff in the libellous article, and with which he had nothing to do cannot be shown in justification. Evidence of certain conversations and transactions not in presence of plaintiff, by persons not standing in relation of agents or co-conspirators to him, held, improperly received in support of a plea of justification.

James T. Keena, Hawley & Firnane, and H.M. Cheever, for plaintiff in error.

F.A. Baker, E.F. Conely, and G.V.N. Lothrop, for defendant in error.

CAMPBELL J.

Atkinson sued for a libel, which contained reflections upon his conduct in relation to certain dealings and transactions with Gardner K. Clark. Mr. Clark's action, with which Atkinson was claimed to have been involved, was in brief as follows:

Clark was a dealer in grain and grain contracts in Detroit, and bought and sold considerable amounts. On April 5, 1878, Clark had in various dealings issued checks to the amount, as outstanding at the close of the business day, of $11,096.37. At the same time on that day he had on deposit at the Mechanics' Bank, $9,867.51, and a check of Gillett & Hall, of Detroit, for $1,014; leaving a deficiency or loss on the day's balances of $214.88. That evening he called on Colonel Atkinson for professional advice. His statement is that he had reason to fear that his bank account would be garnished by parties in Chicago, and his business crippled so he could not pay his checks; and that he asked Atkinson whether he would incur any criminal liability by drawing his money, so as to make a uniform settlement. He says that being informed he would not, he then told Colonel Atkinson he would go to Toronto for a few days, until it was settled, and that Atkinson did not advise him to go.

The next morning Clark went with Atkinson and drew out his money from the bank, a messenger with a check for the balance not designated having been previously refused payment on such a general voucher. They then went to Atkinson's office, each carrying a part of the packages of notes, and at that place the Gillett & Hall check, which Mr. Clark had handed to Mr. H.E. McNeil to present at the Second National Bank on which it was drawn, was brought back with the statement that the bank would only pay it in the regular course of bank exchanges. This check was handed to Colonel Atkinson for collection, and he was given a list of Clark's outstanding checks, and Clark desired him, if he could, to settle at one-fourth cash and the remainder on time.

Clark went over to Windsor, and missing the early train on which his wife started, remained in the immediate vicinity at Walkertown, until the noon train, on which he left for Toronto, but stopped at Hamilton that Saturday night. While at Windsor or Walkertown he entrusted the bulk of the money to McNeil, who during the day came back to Detroit and delivered the principal part of it to Atkinson, who left it for safe-keeping in the People's Savings Bank, and on Monday took certificates of deposit for all but $1,000, which sum he deposited in the Detroit Savings Bank. The amount of money received from McNeil is shown to have been about $8,750. A portion of the balance is not fully explained.

Atkinson met the creditors three times during the day, and telegraphed to Clark without getting any reply until in the afternoon. He went to Windsor to find him, but failed to do so. At these meetings various conversations concerning settlement occurred, on which there is some conflict, but which are not important except in connection with the justification of the libel, to which reference will be made hereafter. At the last meeting he offered the terms given him by Clark in the morning, but they were rejected. The communications concerning the settlement are among the matters involved in some controversy, both as to time and circumstances. Atkinson left the Gillett & Hall note at the People's Savings Bank and took therefor a certificate of deposit. Gillett & Hall stopped its payment, and Atkinson took it back and informed Gillett & Hall it would not be used to their prejudice. Upon the terms of this communication some questions also were made at the trial, as raised by the libel. Two of Clark's creditors, Messrs. Lasier and McDonald, visited him at Hamilton and induced him to return to Detroit, agreeing to see that he was not molested there. They reached Detroit early Monday morning, first calling on McNeil and then going to Colonel Atkinson's house, where they remained a while and appointed a meeting at Clark's house at a little later hour, with the expectation of coming to an arrangement. At the agreed time it was found by Lasier and McDonald that the other creditors stood out, and were disposed to prosecute, and accordingly they took Clark back to Windsor. In the mean time some creditors had sent to Clark's brother in Boston, and on Tuesday morning he arrived. Atkinson made a settlement and turned over the money and securities. This settlement is also involved in the libel. Clark, through his brother, settled for 75 cents cash, and got time for the balance.

On Tuesday, the sixteenth of April, one week after the settlement, the libel complained of was published. The managing editor before publishing it had interviews with various creditors and other persons concerning its correctness. Some opposed and some did not oppose its publication. It was not published at their instance. After its publication a communication was published signed by Mr. Clark, and approved--so far as his knowledge went--by Mr. Atkinson. In publishing it the editors of the Free Press commented on it at some length, referring to facts outside of it, and in conclusion said: "It is difficult to see wherein the Free Press statement of Tuesday needs to be corrected in the interest of that truth which Atkinson wishes to spread before the public." This last publication was introduced to show malice in repeating and adhering to the charges before made, and is not made the ground of action by itself. The publication sued on consisted of a continuous narrative, with a conspicuous heading, purporting to give a full account of the entire dealings of the parties said to have been involved in Clark's affairs. The whole libel is set out as a single grievance, the account being so drawn up as to prevent any convenient separation of Atkinson's part from the rest. But the grounds on which the principal grievances appear to be based are chiefly these: The heading was in these words: "An inside view--Some hitherto unpublished facts respecting the Clark affair--The figure which several parties cut therein--The movements of Clark and the action of his attorneys--Clark's 'misfortunes' the biggest kind of grist for his lawyer--Rather slight services for a very large fee--$125 gathered in for 'previous services'-- A plain unvarnished tale from which each reader can draw his moral."

These references to professional misconduct, which are undoubtedly libellous on their face, appear from the body of the publication, and are also averred by the innuendoes to relate to Colonel Atkinson. It is claimed, and I think justly, that they indicate that Atkinson took advantage of Clark's circumstances to make extortionate charges for services and pretended services. In the body of the principal article, the chief indications of an offensive character, as apparent from the words alone or as applied by the innuendoes, seem to include a series of acts, which are declared to "reflect no credit on the parties of the second part, who have figured more or less prominently in the affairs." Atkinson and McNeil are the only persons mentioned, and it is averred the reference was made to plaintiff, who is also connected by averment with a previous reference to a "power behind the throne, which moved in a mysterious way." Proceeding with the narrative, reference is made to Clark's claim that he heard Chicago parties meant to garnish his deposits, and it was stated that on Friday evening or Saturday morning, at McNeil's suggestion, Clark called on Atkinson. Then follows this sentence, which is by averment alleged to mean that Atkinson gave advice which was improper, dishonest, and discreditable to him professionally: "The advice that was given to Clark by Atkinson is of course not positively known to any besides those two, but the subsequent visit of Clark and Atkinson on Saturday morning to the bank, and their drawing out the money, to be followed almost immediately by Clark's departure for Windsor, caused certain inferences to be drawn too obvious to mention."

The article then stated that, "on withdrawing his money $9,867, from the bank, Clark passed part of it to Atkinson, which, on arriving at the head of the stairs, leading to Atkinson's office, was, Atkinson stated, passed back to Clark." This last phrase, "Atkinson stated," is averred to mean that Atkinson retained a part of the money, and at the close of the article is a further...