McDuff v. Detroit Evening Journal Co.

• Decision Date: 24 December 1890
• Citation: McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N.W. 671 (Mich. 1890)
• Court: Michigan Supreme Court
• Parties: MCDUFF v. DETROIT EVENING JOURNAL CO.

47 N.W. 671

84 Mich. 1

MCDUFF v. DETROIT EVENING JOURNAL CO.

Supreme Court of Michigan

December 24, 1890

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Wilkinson & Post, (Levi T Griffin, of counsel,) for appellant.

James H. Pound, for appellee.

GRANT J.

This is an action of libel, in which the plaintiff recovered verdict and judgment, and defendant appeals. The libelous article is as follows: "Humane Agent Vhay is investigating the case of Andrew McDuff [meaning the plaintiff,] 73 Beech street who is charged with having got away with the property of his father and mother, who are now said to be starving in a Jones-Street attic." Other publications subsequent to this upon the same subject were introduced by plaintiff under objection, and he then introduced evidence tending to show the falsity of the libelous article. Testimony was introduced on the part of the defendant tending to prove the truth of the charge, and good faith in its publication. The issue in the case was as clear and simple as can well be imagined. If the charge were not true, then the article was libelous. The questions to be submitted to the jury were: (1) The truth of the libelous article (2) if not true, the amount of damages suffered; (3) the good faith of the defendant in mitigation of damages.

1. The first point raised in defendant's brief is that the cause should not have been submitted to the jury at all. This point was not raised in the court below, is not assigned as error, and therefore cannot be considered here.

2. The following questions were asked the plaintiff, and answered under objection: "Question. Has there been any difference whatever in the treatment since the publication of these articles by any of these acquaintances from what there was before?" "Q. Will you tell us in what the difference consisted?" This testimony was objected to for two reasons: (1) Because it involved special damages not alleged in this declaration; (2) the questions were not confined to the libelous publication declared on, but involved damages resulting from other publications. Both objections were well taken. The allegation of damages in the declaration is as follows: "He, the said plaintiff, has been and is greatly injured in his good name, fame, credit, and reputation, both as an individual and as such trustee, and brought into public scandal and disgrace, is suspected to have been guilty of the misconduct charged upon and imputed to him as aforesaid, and has been greatly vexed, harassed, oppressed, and impoverished, and hath been and is otherwise much injured." No special damages are alleged, only general damages, in the general and usual language of declarations in libel cases. The article is libelous per se, but that of itself does not render evidence of special damages, or of specific acts of others towards plaintiff in consequence of the publication, admissible, unless alleged in the declaration. Whenever a plaintiff alleges no special damages, he is presumed to rest content with those damages which are the natural result of the libelous publication upon his character and reputation and feelings, without proof of specific facts. He is presumed to have a good reputation and character. The damages he is entitled to recover are the result of the natural injury to these and to his feelings, coupled with the malice, or want of malice, with which the article was published. These the defendant is prepared to meet. He cannot be prepared to meet special instances of slight, avoidance, loss of hospitality on the part of friends and acquaintances, from whatever part of the world the plaintiff may choose to bring witnesses or to testify to himself. If plaintiff desires to recover for damages for such special injuries, he must allege them. Bassell v. Elmore, 65 Barb. 627; Terwilliger v. Wands, 17 N.Y. 57; Dicken v. Shepherd, 22 Md. 399; Folk. Starkie, Sland. & L. � 378, and cases there cited. The rules of pleading are founded upon reason and fairness. The issue in ordinary lawsuits is limited. The parties are more or less familiar with the transactions involved, and the defendant may fairly be presumed to have some knowledge of the testimony against him, and what witnesses he can produce to meet it. In a libel suit, under an allegation of general damages only, the issue is, what damages has the plaintiff suffered generally in the community where he is known, by the publication of the libelous article? not what he has suffered in individual instances where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover, he must allege them. No other rule would be fair and reasonable. Davies v. Solomon, 41 Law J. Q. B. 10. In that case the allegation was that the plaintiff had ceased to receive the hospitality of divers friends, naming them. It is laid down in Folkard's Starkie, Sland. & L. � 634, that "a plaintiff under an allegation of general injury may show a general diminution of business; but, if he seeks specific damages, he must give specific evidence." An examination of some of the records in libel suits heretofore decided by this court has convinced me that this has been understood by the profession to be the rule. In Weiss v. Whittemore, 28 Mich. 374, it was decided that, under the allegation of a general loss of trade, the names of the customers driven away or lost need not be mentioned. But the court held: "The general allegation of the loss of trade is sufficient, and the declaration may be supported by evidence of such general loss." It was held in Bourreseau v. Journal Co., 63 Mich. 437, 30 N.W. 376, that it was not competent for the defendant to prove distinct facts that had not been made part of the issue as framed, and that no one could be prepared in advance to anticipate every fact, true or false, which might be offered in evidence, and of which plaintiff had no notice. The evidence on the part of the plaintiff must be governed by the same rule as on the part of the defendant; and, if the defendant cannot introduce specific facts without pleading them in justification, for the same reason the plaintiff should not be permitted to prove them. Otherwise, there would be one rule of evidence for the plaintiff, and another for the defendant. Briefly stated, the rule is that the allegation of general damages will admit only general proof.

3. Plaintiff was one of the trustees of the estate of Andrew McDuff. He was not living in Detroit at the time he was made trustee. One McFedries, a son-in-law of Andrew McDuff, was asked the following question: "You did send for Gilbert McDuff to come here and take charge of this estate?" This was objected to as irrelevant and incompetent; the request, if any, having been made by letter. Plaintiff's counsel then offered some letters written by the witness to plaintiff, which the counsel himself said he did not think were admissible. After considerable discussion by counsel, the court asked the witness the following questions: "Question. You did send for Gilbert McDuff to come here and take charge of this estate? Answer. I did, most emphatically. Q. Did you consult with his father and mother before you sent for him? A. Yes, sir. Q. How did you communicate with him? A. In writing the letter." Thereupon counsel for defendant moved to strike out the answers and questions, to which motion the court replied: "I am going to let them stand, if they are the only answers in the case." The testimony was both irrelevant and incompetent. So far as the management of the estate by plaintiff was concerned, it was of no consequence how he came to take charge of the estate; but, if material, the letters were the only competent evidence of the fact.

4. Another witness for plaintiff was asked the following questions: "That part of the article published in the Detroit Evening Journal of February 1, 1888, stating 'who are said to be starving in a Jones-Street attic,' referring to the mother and father of the plaintiff, is it true or untrue?" This question was for the determination of the jury from the facts placed by the evidence before them. It called for the opinion of the witness from the facts within her knowledge. These facts it was competent to testify to. The conclusion was for the jury, and not for her. The answer called for her opinion, which was clearly improper.

5. A copy of the Omaha Herald was introduced, containing the following: "Andrew McDuff, of Detroit, who had amassed a fortune, had not been seen for about ten years, till recently found by an agent of the Humane Society. He was...