Bennett v. Stockwell

• Decision Date: 27 June 1917
• Docket Number: No. 137.,137.
• Citation: 197 Mich. 50,163 N.W. 482
• Parties: BENNETT v. STOCKWELL et al.
• Court: Michigan Supreme Court

197 Mich. 50

163 N.W. 482

BENNETT

v.STOCKWELL et al.

No. 137.

Supreme Court of Michigan.

June 27, 1917.

Error to Circuit Court, Kalamazoo County; Walter H. North, Judge.

Action by Milo O. Bennett against John W. Stockwell and others. Judgment for defendants, and plaintiff brings error. Reversed, and new trial granted.

Argued before KUHN, C. J., and STONE, BIRD, MOORE, STEERE, and BROOKE, JJ. Milo O. Bennett, of Kalamazoo, in pro. per. Alfred J. Mills, of Kalamazoo, for appellees.

STONE, J.

This is an action of libel against the defendants, who served as grand jurors in the circuit court for the county of Kalamazoo, for the composition and publication of an alleged false, malicious, and defamatory document, styled a ‘report,’ which was filed with the circuit court for said county by the defendants, through Byron J. Carnes, their foreman, on February 5, 1914. The report was written by defendant Stockwell and handed to the circuit judge by defendant Carnes. The said ‘report,’ containing the alleged libelous language, was before this court in Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N. W. 141, Ann. Cas. 1916E, 223, and is fully set forth there, in the opinion of Justice Brooke, to which reference is made. It was addressed to the circuit court for the county of Kalamazoo, and the opening sentence is: ‘We, the members of the grand jury now in session, beg leave to report,’ etc. It was signed: ‘The Grand Jury of Kalamazoo County, by Byron J. Carnes, Foreman of Grand Jury.’ It appears undisputed that this report was presented to the court by the foreman thereof, in the presence of the entire jury. In Bennett v. Kalamazoo Circuit Judge, supra, we said:

‘In this state there are but two matters upon which a grand jury have statutory right to make reports or presentments-i. e., trespass on public lands (1 Comp. Laws, § 1395), and violation of the election laws (section 11443). Sections 11891-11893, Comp. Laws, provide how indictments shall be found, but contain no provisions for the filing of a report or presentment reflecting upon the conduct of public officials. An examination of the report filed by the grand jury in the instant case shows that it contains reflections of the gravest character upon the official conduct of the petitioner, if it does not actually charge him with the commission of a felony. A review of all the cases cited upon both sides of the question, and such others as we have been able to examine, leads us to the conclusion that inherently, apart from statutory sanction, the grand jury has no right to file such a report, unless it is followed by an indictment. The evils of the contrary practice must be apparent to all. While the proceedings of the grand jury are supposed to be secret, it is clear that in the present instance that secrecy was not inviolate, for the objectionable report found its way into the press of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such report be true or false, it can make no difference with the principle involved. In either event the accused person is obliged to submit to the odium of a charge or charges based, perhaps, upon insufficient evidence, or no evidence at all, without having the opportunity to meet his accusers and reply to their attacks. This situation is one which offends every one's sense of fair play and is surely not conducive to the decent administration of justice.’

And this court issued a mandamus to compel the respondent therein to grant a motion of the relator to strike from the files of the court, said report. Upon the trial of the instant case it appeared that the plaintiff had been elected prosecuting attorney of Kalamazoo county at the general election held in the month of November, 1912, and that he served as such officer during the years 1913 and 1914. There was evidence in the case that defendant Stockwell prepared the report. He testified:

‘I prepared that report myself and not from any dictation. * * * I made two copies, one original and one carbon. The original was signed by the foreman.’

It appears that the carbon copy reached the newspaper publisher through the hands of the circuit judge. The witness Stockwell says he does not remember what was done with the carbon copy, but testified that he did not give it to the circuit judge. It does appear undisputed that the circuit judge had possession of the carbon copy shortly afterward and exhibited it to Mr. Nichols, the special prosecuting attorney who had been appointed to attend the grand jury. It further appeared that Mr. Nichols, although attending the grand jury in the examination of witnesses and the preparation of indictments, had no knowledge that such report had been made, or was in existence, until the carbon copy was shown to him by the circuit judge on the same day the original was filed and spread upon the journal of the court. At the close of the plaintiff's evidence a motion was made to direct a verdict for the defendants upon the grounds that the alleged libelous article declared on and made a basis of the action was privileged absolutely, or, if not privileged absolutely, that it was qualifiedly privileged; and after some discussion the court directed a verdict for the defendants.

The case is brought here by the plaintiff upon writ of error, and the assignments of error discussed are that the court erred: (1) In charging the jury to return a verdict in favor of the defendants upon plaintiff's own case, as shown by the record. (2) In striking out the testimony of one of the defendants as to the action of certain jurors in their deliberations. (3) In granting the motion of defendants' counsel to withdraw plaintiff's case from the jury, and direct a verdict against plaintiff without submitting the same to the jury for their determination as a question of fact whether the article was libelous, and as to the extent of plaintiff's damages. We are of opinion that this court has already passed on the question whether this alleged report was privileged, either absolutely or qualifiedly. If it had been privileged at all, this court would not have ordered it stricken from the record. It is manifest that if the defendants composing the grand jury had returned an indictment against the plaintiff, that would have been privileged.

It is the principal contention of defendants' counsel that the article was qualifiedly privileged. We are of the opinion that it was not privileged at all. This court has repeatedly held that the occasion determines the question...