Maclean v. Scripps

• Decision Date: 23 January 1884
• Citation: 18 N.W. 209,52 Mich. 214
• Court: Michigan Supreme Court
• Parties: MACLEAN v. SCRIPPS. [1]

18 N.W. 209

52 Mich. 214

MACLEAN v. SCRIPPS. ^[1]

Supreme Court of Michigan

January 23, 1884

A privileged publication must be shown to be not only false and injurious, but malicious, to entitle the aggrieved party to damages. A false and injurious publication in a public journal, "for sensation and increase of circulation," is in a legal sense malicious.

A charge liable to mislead must be objected to at the time it is given, that the judge may make the correction before the jury retires.

Motion for a rehearing denied. Every question raised by the appellant was considered. It is not necessary or desirable that they should all be discussed in the opinion.

Error to superior court of Detroit.

Russell & Campbell, for plaintiff.

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

COOLEY, C.J.

Motion is made for a rehearing in this case upon grounds which will be noticed briefly.

1. It is said that to meet the testimony that the letter the plaintiff was charged with having written was his, he or his friends prepared a number of witnesses to testify in his behalf by furnishing them with what purported to be specimens of his handwriting. From these specimens, which they refused to produce, the witnesses, thus prepared, testified that they knew his handwriting, and that the letter was not his. The defendant's counsel, on the hearing, urged the impropriety of this practice, and insisted that it was ground for reversal. And it is complained that in neither of the opinions was the point noticed. This court reviews the rulings of the trial courts so far as they have been specifically objected to. Questions of propriety in the conduct of parties, which have not been brought to the notice of the court below and ruled upon, are not in this court grounds for a reversal. If any witness in the trial court testified to the plaintiff's handwriting without being shown to have knowledge of it, it must be assumed that the trial court on motion would have struck out his evidence. If it was shown that he knew the handwriting, the evidence must stand for what it was worth. But if counsel could convince the jury that the witnesses had been "prepared," as he claims was the case, it is not likely their evidence would have received much attention.

2. It is complained that the court took no notice of the exception taken to the evidence of an expert, who testified that a letter like the one in dispute could be built up from specimens in the hands of a skillful writer. The question which called for the evidence, it is said, was a hypothetical question, and as there had been no evidence that any one had specimens of the plaintiff's handwriting, there was no foundation laid for asking it. The court did not consider the objection well grounded in fact, and do not now.

There was considerable evidence by witnesses who had seen and possessed specimens of the plaintiff's handwriting, and his profession and public position would render it probable that many other persons must have had them. No member of the court had any doubt of the question being allowable, and the ruling complained of was passed by without notice as being so obviously correct as to call for no special mention.

3. Two requests for instructions by the defendant, which are said to involve "all that is valuable in the privileges of the press," were not specifically given, namely: First whether, in cases where the publication was privileged, and where it is conceded the plaintiff must prove falsehood and malice, malice may be inferred from falsehood in the absence of any evidence that the defendant knew the publication to be false; second, whether there was any evidence in the case to prove malice. Whether the trial court was right or wrong in not giving these instructions has not it is said, been decided by this court. No court has gone further than this in upholding the privileges of the press and very few so far. If there has, by oversight or otherwise, been any failure to recognize and support them in this case, the court would be prompt to make the correction on its attention being called to the need for it. But there has been no such failure. It is true, there was no evidence in the case of a malicious purpose on the part of the defendant to injure the plaintiff, but there were proofs from which the jury might infer that the publication was made in entire disregard of the plaintiff's rights, and from interested motives. The jury drew this inference, and returned a special finding that the publication was made, not from any motive upon which the defendant was privileged to act, but for "sensation and increase of circulation." A false and injurious publication made in a public journal for "sensation and increase of circulation" is unquestionably in a legal sense malicious. The finding, therefore, rendered the question whether malice in any other sense might be inferred from the falsity of the publication entirely immaterial. Neither in morals nor in law is the mercenary publication more defensible than if the purpose were to defame and injure. But in respect to the proof of malice, the charge of the trial judge could scarcely have been made more favorable to the defendant than it was. He told the jury, over and over again, that, the article being privileged, the plaintiff must show "that the accusation contained in the article is untrue;" that he must "convince them by a preponderance of testimony;" that it must be "the kind of testimony which the plaintiff is called upon to produce to the satisfaction of the jury;" that "the article is privileged; it is for the plaintiff to remove the privilege, not only by showing that the article was untrue, but by proving that it was meant to injure;" that if "the plaintiff has failed to prove the untruth of the article, and the maliciousness with which it was published, then, the article being privileged, there would have to be a verdict for the defendant." The jury could not have failed to understand from the charge that the plaintiff was not at liberty to stop with proof of falsity, but that he must give further proof before the jury could be asked to infer malice. The trial judge appears to have been particularly careful and anxious to see that the defendant's privilege, if he had kept within it, should be preserved to him.

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