Maclean v. Scripps

• Decision Date: 21 December 1883
• Court: Michigan Supreme Court
• Parties: MACLEAN v. SCRIPPS.

17 N.W. 815

52 Mich. 214

MACLEAN v. SCRIPPS.

Supreme Court of Michigan

December 21, 1883

The willful publication of injurious statements involves the design to produce whatever injury must necessarily follow and when done purposely, knowingly, and for no good purpose or justifiable end, it is malicious in the sight of the law even if done without any actual personal ill-will.

Error to superior court of Detroit.

SHERWOOD J., dissents.

Russell & Campbell, for plaintiff.

Henry W. Montrose, John Atkinson, and Isaac Marston, for defendant and appellant.

CAMPBELL, J.

The issues in this case, although several assignments of error appear in the record, were mainly rested on a few classes of questions. The libel sued on, which contained recitals tending to show that plaintiff, while a medical professor in the university, had illicit relations with a Canadian lady patient and kept up an obscene correspondence with her, was claimed by defendant to have been published under circumstances rendering him legally blameless. The plea of not guilty was accompanied by a notice which relied--First on privilege, resting on the previous publication in Canadian newspapers, without contradiction, and the right of the press to make the charges public as affecting the good fame and interests of the university, and as requiring investigation second, the truth of the charges; and, third, accord and satisfaction.

No errors are assigned bearing on the last two questions except as they relate to matters of evidence. The question of privilege and the treatment of it by the court are the main questions, apart from the incidental interlocutory ones as to rulings of various kinds. The court below held that the publication was in its nature privileged, and that the plaintiff had the burden of showing both its falsehood and that it was not published with proper motives. This ruling renders several questions unimportant, and considerably narrows the legal issues.

Upon the question of truth the plaintiff introduced a considerable amount of testimony concerning the state of health of the lady in question, and also to account for her history while at Ann Arbor. The methods of proof on this subject appear to have been usual ones, and admissible if the facts of her condition were pertinent at all. We think her physical condition, as affected by the diseased state described, was pertinent to the inquiry, and had some bearing on the probabilities. Its weight, of course, would depend on its relation to other facts introduced on the question of innocence. Complaint is made that defendant was not allowed to contradict her sickness by evidence of her condition at her home thereafter. The court excluded testimony in regard to her employment at home and visiting, but told counsel they might contradict her evidence as to her weakness and sickness there. This they did not see fit to do. This was the only question relevant to contradict what had been shown for plaintiff, and there was no error in confining the testimony to that issue. The chief controversy centered upon the genuineness of a scurrilous letter written over a fictitious signature and addressed to C.D. Brenton, at Tilsonburg, the home of Mrs. Wardle, the lady in question. The theory of the defense was that plaintiff wrote it in Kingston and sent it to Mrs. Wardle under that assumed name. The handwriting of this letter was therefore the most important matter involved in the whole case. If plaintiff wrote it he had no cause of action. All of the charges in the libel originated in what was said and done about this letter. The handwriting was made the subject of testimony from persons, proving it in the ordinary way from personal familiarity with the plaintiff's writing, and by experts on both sides giving testimony from its appearance by comparison. So far as the former kind of evidence is concerned there are no rulings which are peculiar, or which, in our opinion, require special consideration. But there was an exclusion of certain expert testimony of which complaint is made as being very important, and as improperly ruled out. This is contained in a number of depositions in which the experts undertook to determine identy of hands from a number of photographs of letters, including the Brenton letter and some letters claimed to have been genuine letters of the plaintiff.

The originals of these papers were not claimed to be lost or out of reach. The fact that there were photographs produced, claimed to be from the originals, of itself indicates that no such difficulty probably existed, and the case was not claimed to depend on any impossibility of producing them. No authority seems to justify the proof of the handwriting of attainable originals, by any species of imitation or copy. That photography may be used to obtain close imitations is no doubt true. But it is not a recognized fact that all of the appearances of a written document are capable of such exact reproduction that the copy will fully represent the original. It is the original paper which in this case raised all the difficulty. The proof to be admissible must relate to that. We do not think that secondary evidence was admissible. This question was before us in the Foster Will Case, 34 Mich. 23, where our view was as now expressed. Haynes v. McDermott, 82 N.Y. 49, is an instructive case in the same direction. Some other cases of similar purport were cited on the argument. We do not think the court erred in this ruling.

It is also objected that the defendant was not allowed to show that in the domestic disturbances attending the production of the Brenton letters, Mrs. Wardle did not deny the charge of her guilt. How far these facts were admissible in this suit is not now important, because the court below admitted proof of all the circumstances so far as relevant to Mrs. Wardle's testimony, and only required proof of what was said and done, leaving the inferences to be drawn by the jury. There was no ruling which prevented the jury from becoming acquainted with all that the witnesses could say on the subject of express or implied confessions, or denials so relevant.

It is also urged that defendant was not allowed to prove his own motives and those of his subordinate, McVicar, in publishing the article. The error assigned as to McVicar was that he was not allowed to answer the single question, "Why was this article published?" That as to Scripps was, that having been called by plaintiff to show his interest in and control over the paper, and his publication of a subsequent article referring to this libel suit, he was asked on cross-examination by his own counsel: "Will you state whether you had any purpose to injure him [plaintiff] in assenting to the publication, or on other grounds?" This was objected to as not proper cross-examination, and also that if the article was privileged it must justify the grounds. The court ruled it out. So far as McVicar's motive was concerned it could not affect defendant one way or the other, except as communicated to defendant for his information. The court allowed all that passed between McVicar and defendant before the publication to be shown fully. This was all that could be relevant here. So far as Scripps is concerned he also was allowed to show all that occurred previous to the publication and the information on which he acted. He testified that he put implicit confidence in McVicar's statement, and that he had no ill-will against plaintiff; did not know him and had never seen him. After this testimony it is difficult to see how he was injured by the exclusion of the other question. It would not probably have been error to allow it, but aside from its being put on cross-examination upon a different issue, the facts already drawn out rendered it of no further consequence beyond repetition. If the facts existing were such as to render the publication proper, the motives already indicated, if believed, would, under the charge of the court, dispose of any such question. The chief discussion of law is on the question of privilege. Defendant claims the article was absolutely privileged. The court held it was privileged unless shown to be both false and published without good motives, and maliciously. That a person may publish falsehoods of another who occupies a position in which his conduct is open to public scrutiny and criticism, without any reference to the object to be secured by the publication, is a doctrine which has no foundation that we have been able to discover. Whether this article, taken as a whole, was privileged until reason was shown to the contrary, is not now important, and need not be discussed, because the plaintiff is not the complaining party, and the ruling below went as far as possible to hold it so. That the privilege is lost by malice is elementary law in such cases. The question which the court below discussed, and which is discussed here, is whether the malice must be actual personal ill-will to plaintiff, or whether the publication of what is necessarily injurious, and done purposely and knowingly, and not for any good purpose or justifiable end, is legally malicious within the law of libel.

Upon this we think there is no room for serious question. The term "malicious" cannot be improper to designate a willful injury without just reason. It is not claimed that there is any room to question the injurious character of this article. Neither can it be questioned that the willful publication of it necessarily involves a design to produce such injury as is a necessary consequence of it. This being so, it would be a violation of all the analogies of legal language to hold that a willful injury is not malicious if made without any good cause. The constitution, in regard to...