Hitchcock v. Moore

• Decision Date: 27 April 1888
• Citation: 70 Mich. 112,37 N.W. 914
• Court: Michigan Supreme Court
• Parties: HITCHCOCK v. MOORE.

37 N.W. 914

70 Mich. 112

HITCHCOCK v. MOORE.

Supreme Court of Michigan

April 27, 1888

Error to circuit court, Oakland county; W. W. STICKNEY, Judge.

Action by Charles J. Hitchcock against Stewart Moore for slander. Verdict and judgment for defendant, and plaintiff appealed. On the trial plaintiff, among other things, testified in regard to the receipt mentioned in the opinion of the court. "I know the name of the hotel keeper at Clyde. Have seen him here in the court-room, but do not remember what day. Did not go to a citizen of this place and tell him that I thought he was going to be a witness against me, and tell him to go and see him; and that if he was, I would pay him money to keep away; and did not give the citizen $10 to keep the man from testifying against me. The citizen did not take $10 and give me a receipt: 'Received of James Harger $10 to apply on mum is the word.' Received such a receipt, but did not give, or cause to be given, $10 to any one for it. Do not know who gave the $10. Do not know why he sent me the receipt. I took it to my attorney. Did not go to Harger, or have any man go to him, to see about this witness." " Question. Nor you didn't know that Harger was going to be seen? Answer. I knew a man was going to see Harger. I knew the man did see Harger. Q. Who was the man you knew was going to see Harger? A. I knew of it afterwards. He was going to see him. Q. Who was the man that you knew was going to see Harger, that you found out afterwards went and saw Harger? Same objection same ruling. A. I didn't see anybody go and see him. Q. Go on and explain how you got this receipt. A. It was sent to me. Q. Explain how it came to you. A. I suppose Harger sent it to me. Q. What did he send it to you for? A. Seems he had received $10, and sent it to me for receipt. Q. If it never came from you, you didn't have anything to do with it. Why did he send the receipt to you? A. He supposed it was for me, I suppose. Q. Why did he send it to you? A. It must have been for me, or he would not have written me. Q. You either let him have $10 didn't you, or else you expected to? A. No, I didn't let him have $10, and I didn't expect to. Q. And you say the receipt was for you? A. The receipt was sent to me. Q. Now, you know, don't you, that a part of that money, that $10, went to this man that you saw in the court-room that you didn't want as a witness against you? Isn't that true? A. No, it is not that I didn't want him as a witness against me. Q. You didn't return the receipt after you got it? A. No. Q. When you got that receipt, when it didn't belong to you, did you send it back to Mr. Harger? A. No, I took it to my attorney. Q. Why didn't you send it back to Harger if it did not belong to you? A. Because I thought my attorney should know what it was. Q. The receipt read this way: 'Received of James Harger $10, for mum is the word,' was that it? A. I think it was similar to that. I can't say just how it was worded. Q. Does it not read, 'Received of Charles Hitchcock for mum is the word?' A. Can't say whether that is the way. Can't say what the wording was or whether my name was used. Think I got that receipt one day last week, and have not seen it since I took it to my attorney. Q. Don't you know that you have seen James H. Harger, ex-register of deeds, yourself? A. I may have seen but have not spoken to him. A man by the name of Mason Leonard, a cousin of mine, who lives in Troy brought me that receipt. Q. Well, was it Mason who went and talked to Harger for you? A. He did not go for me. Do not know that he went at all. Was at Turk's store when he gave me that receipt, and I took it and looked at and read it, and took it to my attorney, and have not seen it since. Q. How much money did you pay Leonard last week? A. None. Q. When did you pay him? A. None at all. Q. He paid this money to James H. Harger, and you haven't paid Leonard yet? A. No, sir. I haven't paid Leonard. Redirect. Never requested Mr. Leonard to see Mr James H. Harger for me, and I do not know that he ever saw James H. Harger, and I do not know whether James H. Harger was paid any money. I have not promised to pay Mr. Leonard any money in the future. Knew nothing about the matter at all until that receipt was brought to me. Knew that Leonard talked of seeking Harger. Did not authorize him to pay Harger any money. Recross. I have not had any talk at all with Copp. Q. What conversation did you have with Leonard about seeing Harger? A. Leonard said if Copp was going to be a witness, Harger could find out what he was going to swear to. Think it was something to that effect. If he was a witness in the case he could find out. Q. Did you tell Leonard you thought Copp was going to be a witness? A. No, sir; told him I didn't know. Said he was here. Q. How did you happen to be talking about Copp? A. He asked me who was here on the other side. Q. You thought Copp was one of our witnesses at that time? A. I did not know whether he was or not." On this point the court charged: "There is no evidence in this case that any money was paid in connection with the receipt by plaintiff; and if some other person paid the money without any authority from the plaintiff it cannot in any way militate as against the plaintiff. That whole matter is a matter for the jury to determine, from all the proofs in the case. How far the plaintiff was connected with the transaction, and how far that connection, if connected at all, affects his credit as witness."

MORSE J.

This is an action for slander arising in White Lake, Oakland county, and tried in the circuit court for that county. Verdict and judgment went for the defendant. It was charged in the declaration that the defendant had wrongfully accused, in various words and ways, the plaintiff of burning defendant's barn in August, 1886. The plea was the general issue.

We shall consider the errors assigned in the order in which they were argued before us.

1. Upon the cross-examination of the plaintiff he was asked questions concerning his treatment of his wife, who was a daughter of the defendant, and if he did not at one time, while they were living together, take her down and put his foot upon her, and otherwise use her cruelly. The plaintiff called as his next witness one Jackson Voorheis, and his counsel proposed to show by such witness what the general reputation of the plaintiff was, where he resided, as to being an upright, law-abiding citizen. This was excluded. It is contended that the plaintiff has a right in this action to show his general good character and reputation, as a part of his main case, as such character and reputation are necessarily involved in the issue, independently of the fact whether such character is attacked by defendant or not, and especially in this case, where, upon cross-examination, the character of the plaintiff had been indirectly if not directly questioned. The following authorities are cited to sustain this contention: Williams v. Haig, 3 Rich. Law, 362; Bennett v. Hyde, 6 Conn. 24; Adams v. Lawson, 17 Grat. 258; Shroyer v. Miller, 3 W.Va. 158; Sample v. Wynn, Busb. 319; Romayne v. Duane, 3 Wash. C. C. 246; Williams v. Greenwade, 3 Dana, 432; King v. Waring, 5 Esp. 13; Rogers v. Clifton, 3 Bos. & P. 583; Burton v. March, 6 Jones, (N. C.) 409; Wood's notes to Starkie, Sland. & Lib. 717. We think the better doctrine and the weight of authority supports the ruling made by the court below. The law presumes the character of the plaintiff to be good until it is attacked and he can safely rest upon that presumption. As long as it is not assailed, there is no comparative degree of good, better, best in his character. It stands as the best. If he himself opens the inquiry, then the comparison legitimately commences; and upon his own and showing, without any attack by the defendant, his character may be qualified and reduced below the standard of the presumption, upon which he may confidently rely until it is questioned by the opposite party. Without introducing any evidence his reputation and character stands without qualification or defect, and no evidence that he may offer can add to or increase its force and virtue. The almost universal rule has been as held by the circuit judge. See the following authorities: Cornwall v. Richardson, Ryan & M. 305; Matthews v. Huntley, 9 N.H. 146; Stow v. Converse, 3 Conn. 326; Bamfield v. Massey, 1 Camp. 460; Dodd v. Norris, 3 Camp. 520; Houghtaling v. Kelderhouse, 2 Barb. 149, 1 N.Y. 530; Gough v. St. John, 16 Wend. 646; Anderson v. Long, 10 Serg. & R. 55; 1 1 Whart. Ev. (2d Ed.) �� 47-50; Miles v. Vanhorn, 17 Ind. 245; McCabe v. Platter, 6 Blackf. 405; Howard v. Patrick, 43 Mich. 121, 5 N.W. 84. See, also, Fahey v. Crotty, 29 N.W. 876, and cases there cited. Nor can the fact that inquiries are made, upon cross-examination, in relation to specific facts that may tend to weaken his good character and lessen his good reputation, change this rule. Such specific facts cannot be met, either as a part of the main case, or upon rebuttal, with evidence of general reputation in the community where he lives. If, upon such cross-examination, he admits the existence of such specific facts, they must stand against him for what they are worth, except as they may be explained and qualified by evidence or explanation in his behalf. If they are denied by him, and the defendant introduces testimony tending to establish them, he has the right in rebuttal to deny them, and establish their falsity or non-existence.

2. The cross-examination of the plaintiff with the view of showing that there had been divorce proceedings between the plaintiff and his wife; that under the decree in the case he had been compelled to pay $500 for the support of his child; and that he had made threats that ...