Bathrick v. Detroit Post & Tribune Co.
| Citation | 50 Mich. 629,16 N.W. 172 |
| Parties | BATHRICK v. DETROIT POST & TRIBUNE CO. |
| Decision Date | 13 June 1883 |
| Court | Supreme Court of Michigan |
Where it is claimed that a daughter was debauched for money, under an arrangement made with the consent of the mother, the condition and surroundings of the women, including their extreme poverty, as shown by their receiving aid from a county as paupers, are proper matters to be put in evidence before a jury.
Where on a preliminary examination in a criminal case before a justice of the peace, an apparent legal cause for issuing a warrant is made out, and none is issued, in an action of libel for charging the accused with the commission of a crime, he is entitled to ask the justice why such warrant was not issued against him after such examination.
As, in this case, the alleged suicide of the girl, said to have been seduced, was not so connected with the case as to be made relevant, it was properly excluded.
A witness may be asked as to the substance of a conversation with a party to the suit, although he cannot give the exact words used, and it is for the jury to give proper weight to his testimony.
Where a witness who wrote an alleged libelous article for his paper was asked if he did not know that other papers had retracted what had been charged against plaintiff, answered that he did, and that after such retraction he had investigated the matter, it is error not allow him to state the result of such investigation with a view to explain why the charge in his paper was not also retracted or explained.
Where a paper has been deceived or misled into making a false charge of criminal conduct, its managers should be particularly anxious to correct the error as speedily as possible, and whatever is calculated to cast doubt upon the correctness of the information on which the charge was based, ought to put them upon fresh inquiry. But to retract a charge while believing it well found, although other papers had retracted would be pusillanimous.
Where a publication charges, in the most positive terms, seduction adultery, and criminal abortion, and the party accused sets out the article at length in his declaration, with an innuendo that defendant, in publishing it, meant and intended to charge the criminal abortion only, he cannot, by thus electing to treat the charge, restrict the defendant to evidence justifying the charge of criminal abortion alone, and evidence relating the seduction and adultery is admissible.
Where evidence is offered to show the reputation of a party charged with the commission of a criminal act, the witnesses should be restricted to what they knew of the reputation of the party before the publication of an article accusing him of such crime.
Where a medical expert testifies that he examined a woman, and discovered no evidence that an abortion had been committed on her, he may, on cross-examination, be asked if, after a certain time and under circumstances indicated, there would exist any such evidences.
For the proprietors of a newspaper to make a judicial investigation as to the commission of a crime the mere occasion for unfounded sensational charges, is not only to do wrong to individuals, but to disturb the peace and order of society, and such publication is not privileged, and no public considerations sanction, encourage, or excuse it.
An absolute charge of crime against a man is not necessarily wanton, and even if not privileged, on mitigating circumstances shown, it does not necessarily carry with it every element of damage known to the law, and, under the circumstances of this case, the court erred in so instructing the jury.
Error to superior court of Detroit.
E.M. Converse and John Atkinson, for plaintiff.
Henry M. Cheever and Geo. V.N. Lothrop, for defendant and appellant.
The plaintiff is a physician practicing at Battle Creek, in this state. The defendant is publisher of a daily paper in the city of Detroit. In July, 1881, the defendant published in its paper the following article as Battle Creek news "The greatest excitement was caused here to-day by the issuing of a warrant for the arrest of Dr. F.W. Bathrick, a wealthy and leading physician of this city, on the charge of abortion on the person of Miss Anna Prosser, a young lady of 17. The facts, as embodied in the sworn statement, are these: Miss Anna Prosser is a beautiful young lady and the only daughter of an English lady. About one year ago she was taken sick and Dr. Bathrick was called to attend her professionally. During his visits to the house he managed, by various promises of large sums of money, houses, etc., to seduce the young lady, who has always borne a pure and spotless character. After this criminal interviews were frequent, until a few weeks ago, when the girl was discovered to be enciente, and to cover up the discovery he produced an abortion, in which operation the girl, who is frail and delicate, nearly died.
He never kept his promises to her, and this was the way the matter leaked out and the officers got hold of it, whereupon they obtained the girl's and the mother's affidavits yesterday, and also the vials containing the medicine he gave her to produce the abortion. Upon this evidence the warrant was issued. There does not appear to be the least doubt of his guilt of the triple crime of seduction, adultery, and abortion. The doctor is a married man, and has a large and respectable family of grown-up children, and a wife who is nearly heart-broken at this development of her husband's perfidy. So great has been the excitement over the matter on the street that threats of tar and feathers have been openly made."
For this publication the present suit was instituted. The declaration avers in the usual form the previous good standing and reputation of the plaintiff among his fellow-citizens, the publication of the article with malicious intent to injure him, "thereby meaning and intending to charge and accuse the plaintiff of the crime of willfully causing a woman pregnant with child to abort and miscarry by giving premature birth to the foetus or child of which she was pregnant, and that a warrant was issued for the arrest of the plaintiff for the commission of said crime of abortion." The defendant pleaded the general issue, with notice, justifying in detail the several statements of the published article as true.
1. On the trial the plaintiff proved the publication of the article by defendant, and the extent of the circulation of defendant's paper, and rested. The defense called F.W. Hall as a witness, who testified that he was 77 years of age; that he lived in Battle Creek; was and had for 12 years been a justice of the peace, and for 15 years a superintendent of the poor; that he had known the plaintiff for 15 years, and Anna Prosser and her mother for 10 years. He was then asked: "Will you state what connection you had with the family prior to July 26, 1881; what you had to do with the family of Mrs. Prosser or Anna officially?" The purpose of the question was explained to be shown that Anna and her mother had been paupers, and had received public aid as such, as bearing upon the probability of an arrangement, which they proposed to show, under which, by consent of the mother, the daughter was debauched by the plaintiff for money. The proposed evidence was objected to and excluded. We think it should have been received. Who the woman was, what were her surroundings, what motives were likely under the circumstances to draw her away from the path of rectitude, and whether the plaintiff knew the circumstances, and had the opportunity as well as the means to make use of the motives which were likely to control her, were matters in respect to which the jury ought to be as fully informed as possible. The reason is patent. One motive will control under one set of circumstances, and another when the facts and surroundings are different, and a jury cannot judge what weight to give to the direct evidence of facts unless they are permitted to know the circumstances under which the facts are supposed to have occurred. There may be nothing very strange or unnatural in a woman who is in absolute want of the necessaries of life surrendering her virtue for money, when if her needs were abundantly supplied the barter would be altogether incredible. The jury are entitled, therefore, to have the surroundings shown, and they are without the means of judging intelligently and wisely of such evidence as tends directly to establish the main fact, unless the circumstances under which the facts are alleged to have occurred are explained. And surely the extreme poverty and dependence of the woman was a very important circumstance in this case.
2. Witness Hall testified that he went to the house of Mrs. Prosser and took her statement under oath. The statement was put in evidence, and is as follows:
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Bathrick v. Detroit Post & Tribune Co.
...50 Mich. 62916 N.W. 172BATHRICKv.DETROIT POST & TRIBUNE CO.Supreme Court of MichiganFiled June 13, Where it is claimed that a daughter was debauched for money, under an arrangement made with the consent of the mother, the condition and surroundings of the women, including their extreme pove......