Mains v. Whiting

• Decision Date: 28 July 1891
• Citation: Mains v. Whiting, 87 Mich. 172, 49 N.W. 559 (Mich. 1891)
• Court: Michigan Supreme Court
• Parties: MAINS v. WHITING.

49 N.W. 559

87 Mich. 172

MAINS v. WHITING.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Calhoun county; FRANK A. HOOKER, Judge.

Action by Charles R. Mains against Horace H. Whiting for slander. Judgment for defendant. Plaintiff brings error. Reversed.

George H. Southworth, for appellant.

Herbert E. Winsor, for appellee.

CHAMPLIN C.J.

The plaintiff brought suit against the defendant for verbal slander. The original declaration set out the words declared to be defamatory, as follows: "You are the dirty sewer through which all the slums of this embezzlement have flowed;" and again, "You are the dirty sewer through which all the slums of this embezzlement have been forced;" and again, "If that twenty dollars had been turned over to you or to Van Wagner, the company would never have seen twenty cents of it." It is not necessary to set out in detail the terms of the original declaration, for the reason that the defendant demurred, and within the 10 days allowed by rule the plaintiff filed his amended declaration, in which he sets forth that he is an attorney and counselor at law, and solicitor and counselor in chancery, of the state of Michigan, and thereby an officer of all the courts of law and chancery in this state, and is thereby a person holding an office of trust, honor, and profit, and had an office in, and is practicing his said profession in, the county of Calhoun; and setting out in the usual form as to being a good and faithful citizen, etc.; and that he was enabled to and did earn and make for himself large sums of money by means thereof, and was enabled to gain and earn a competence and livelihood in and by his said profession, and that he has no other business, occupation profession, or trade from which to derive an income and gain a competence for himself and family. He then avers that the Peerless Reaper Company was a corporation duly incorporated under the law of Ohio, having its home office at the city of Canton, in said state, but was doing business in Michigan and the defendant was the president thereof at the date of the committing of the grievances in the several counts contained in his declaration. He further avers, by way of inducement, that, at the time last stated, it was well known by his neighbors, and other good and worthy citizens of the state, that he had theretofore been, as such attorney and counselor, etc., employed by the said Peerless Reaper Company, and by virtue of his said employment had represented faithfully, and with skill and ability, in divers courts of this state, the said Peerless Reaper Company; and had collected and faithfully and promptly turned over to said company large sums of money so collected, and, when called upon for counsel and advice in such employment by said company, had acted and advised honestly and fairly, and as the rules of plaintiff's profession would require,-all of which was well known to defendant. He avers, further, that $20 had been received by one O. L. Van Wagner, who was then the state agent of said Peerless Reaper Company, for and as the agent of said Peerless Reaper Company, before the 22d day of October, A. D. 1890, and had before that day been by the order of defendant, as president of said company, turned over to one Horace Fairchild by said Van Wagner as traveling expenses, said Fairchild being another agent of said Peerless Reaper Company, and said money being the property of said company, as defendant well knew; and that, to-wit, on the 22d day of October, 1890, said Horace Fairchild, for and in behalf of the people of the state of Michigan, by order and direction of the defendant, as president of said Peerless Reaper Company, had made complaint in writing on oath before one H. A. Tillotson, then a justice of the peace in and for the city of Marshall, in said county of Calhoun, and a criminal warrant had by said justice been issued on said complaint charging one Charles H. Van Wagner, as an agent of said Peerless Reaper Company, with having feloniously embezzled and converted to his own use certain chattels, moneys, and effects of said Peerless Reaper Company, and as having feloniously stolen and carried away said chattels, moneys, and effects, contrary to the form of the statute, etc.; and thereupon said Charles H. Van Wagner had been brought before said justice of the peace at his office for examination upon such charge, and said plaintiff was by said Charles H. Van Wagner duly employed as the attorney and counselor of the said Van Wagner in and about his defense before said justice of the peace upon such charge of embezzlement, and was so engaged in open court before said justice of the peace, and plaintiff was conducting the examination of a witness other than defendant in an orderly and professional manner during the examination of said Van Wagner before said justice of the peace on said criminal charge, and that defendant was not interested in such examination being so prosecuted before said justice save as a witness for and in behalf of the people of the state of Michigan, yet the said defendant committed the grievances hereinafter contained, in open court, before said justice, and in his hearing, and in the presence and hearing of divers good and worthy citizens in said court assembled as spectators and witnesses; he, the defendant, then and at such time knowing that said plaintiff was not a party to nor cognizant of nor in any way a party in interest or guilty of the offense for which said Charles H. Van Wagner was then and there before said justice of the peace charged; and defendant well knowing that said plaintiff, as an attorney or otherwise, was innocent of said charge of embezzlement, or of any embezzlement, of said Charles H. Van Wagner, and that plaintiff was wholly innocent of any embezzlement, and charge and of any guilty knowledge thereof; and also that plaintiff's participation in such proceedings then and there had before said justice was only such as an attorney at law, by virtue of his employment, was in duty bound to do and perform for and in his client's behalf, and such as a client could reasonably expect and require of such attorney at law according to strict honor and integrity, as between such attorney and client; and that such embezzlement with which the said Charles H. Van Wagner was charged was in no way prompted by, encouraged or sanctioned by, plaintiff as an attorney and counselor at law or otherwise, nor had he any guilty knowledge of it, as defendant well knew Nevertheless the said defendant, well knowing the premises, and contriving and maliciously intending to injure, defame, and slander the said plaintiff in his good name, and contriving and maliciously intending to injure, defame, and slander the said plaintiff in his profession as said attorney and counselor at law, etc., as aforesaid, and so as aforesaid did falsely and maliciously impute to said plaintiff unfitness to perform the duties of his office and employment as such attorney and counselor at law, etc., as aforesaid, and so did falsely and maliciously impute to said plaintiff the want of integrity in the discharge of the duties of such his employment as such attorney and counselor at law as aforesaid, and, so intending as aforesaid, did falsely and maliciously speak defamatory words of said plaintiff, which prejudiced said plaintiff in his said profession as an attorney and counselor as aforesaid, and tended...