Cresinger v. Reed

• Decision Date: 08 October 1872
• Citation: 25 Mich. 450
• Court: Michigan Supreme Court
• Parties: Bernard Cresinger v. Samuel Reed

25 Mich. 450

Bernard Cresinger v. Samuel Reed

Supreme Court of Michigan

October 8, 1872

Submitted on Briefs July 13, 1872.

Error to Clinton Circuit.

Judgment reversed, with costs, and a new trial ordered.

Spaulding & Cranson, for plaintiff in error.

R Strickland and H. Walbridge, for defendant in error.

OPINION

Graves J.

This is a writ of error to the circuit court for the county of Clinton. Reed sued Cresinger in slander, and the accusation imputed was, that Reed kept a house of ill-fame. The plaintiff in error pleaded the general issue, with a notice that he would give in evidence on the trial, and insist upon the same as a defense to the action; that, at and before the time and times of the uttering and publishing of the words, as complained of in the said plaintiff's declaration, the said plaintiff had been, and was, guilty of the facts and acts charged and imputed to him by the said defendant in the said several conversations, in the said plaintiff's declaration mentioned; and that, if the words were uttered and published, as charged in the said plaintiff's declaration, the said defendant had good reason to believe, and did believe, that said charges were true; and that it was a matter of common report in the community wherein the said plaintiff then resided; that he did let rooms in his house in the village of Maple Rapids, for hire, for the purpose of prostitution, and that such reports had previously, and often, come to the knowledge of the said defendant.

The plaintiff below, having given evidence of the slander as set up, inquired of one of his witnesses if he had had any conversation with Cresinger, the defendant below, after the commencement of this suit, in relation to Reed and his house, to which the witness replied in the affirmative. The plaintiff's counsel then asked what that conversation was, and the witness replied as follows: "He and I were talking concerning the matter, and he said we could not tell until after election, who had the cost to pay. He said, in case Reed got beat, that the girls would have to charge double price, and divide the money with Mr. Reed. We were speaking about the suit." The plaintiff's counsel then put the following question: "What did you understand him to mean that the girls would have to charge double price for?" This was objected to, but the objection was overruled, and the witness answered: "From the talk he and I had at that time, I supposed he meant the money that they took for agents lodging with them; that is the way I took it."

I think the objection should have been allowed. The witness had given the whole conversation, and it was for the jury, in view of all attendant and connected circumstances, to decide what the defendant meant by what he said. The conversation was shown in order to characterize and deepen the act sued for, and if it was such, according to general understanding of language, as to bear the sense asserted by its introduction, it is to be assumed that the jury would so appreciate it. If, on the contrary, when considered in the light of the facts and circumstances, it was not qualified to bear the meaning claimed for it by its introduction, the understanding or imagination of the witness, was not admissible as a sworn authority to decide otherwise. This I believe to be the fair result on principle, and no case of authority has been cited, nor is any recollected, where it has been decided, that a witness might swear to his understanding of the meaning of a defendant in his utterances proved as repetitions of the slander.

The next and remaining point relates to the notice of justification. The defendant offered to prove the truth of the words, but this was objected to, on the ground that the notice was insufficient, and the evidence was accordingly excluded.

It would seem that this ruling was supposed to be required by the case of Thompson v. Bowers, 1 Doug. 321, and other cases resting on similar grounds. Bowers v. Thompson arose under a system which recognized special pleading, and allowed a notice in certain cases in lieu of a special plea. Sections 27 and 28, added to Ch. 8, title 2, Part 3d, of the R. S. of 1838, by the legislature of 1839, will show how the subject was regulated. They are as follows:

"Sec 27. The defendant in any action may plead as many several matters as he shall think necessary for his defense, subject to the power of the court to compel him to elect by...