Owen v. Dewey

• Decision Date: 05 November 1895
• Citation: 107 Mich. 67,65 N.W. 8
• Court: Michigan Supreme Court
• Parties: OWEN v. DEWEY ET AL.

65 N.W. 8

107 Mich. 67

OWEN v. DEWEY ET AL.

Supreme Court of Michigan

November 5, 1895

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by George W. Owen against Edmund O. Dewey and others for libel. From a judgment for defendants, plaintiff brings error. Reversed.

James M. Goodell, for appellant.

Wm. M Kilpatrick and S. F. Smith, for appellees.

McGRATH C.J.

Action for libel. Defendants gave notice that they would insist in their defense that the material allegations in the article are true. Defendants are publishers of the Owosso Times, and plaintiff is the publisher of the Shiawassee American. On March 27, 1891, defendants published an article in which they charged the plaintiff with an attempt to bribe a state senator, by an offer of money. Defendants pleaded the truth of the charge. Defendants had judgment, and plaintiff appeals.

Defendants gave in evidence an article published in the Evening News of Detroit on March 23, 1891, and an article which appeared in the Owosso Times on March 27, 1891, in the column adjoining that in which the publication complained of appeared. The latter article contained the substance of the Evening News article. Counsel for plaintiff requested the court to instruct the jury as follows: "The jury is instructed that the interview or article published in the Times in the columns adjoining the article charged to be libelous is not to be regarded by them as any evidence whatever of the truth of the charge of attempted bribery. Such interview or article is no more nor less than hearsay, and, as such, should not be considered by the jury as in any way tending to establish the truth of the alleged libelous article upon which this action is based." The court refused the request, but instructed the jury as follows: "Unless the facts and circumstances of the case existing at the time show and satisfy you that the defendants, publishing a newspaper, did have the facts and circumstances before them, from the declaration and conduct of the plaintiff, himself, and of Senator Wilcox regarding the very subject of this libel, from which a careful, fair, prudent, cautious man would naturally and necessarily be induced to believe that bribery was intended or attempted, and that the publishers publishing it, believing it to be true, and without malice, from justifiable motives, based upon the facts created by the plaintiff himself, to the party to whom it is said the corrupt proposition was made,-if you find one was made and submitted to him, and pressed upon him at different times,-it was not the legal duty of the newspaper to inform the public of it, but it was a duty of imperfect obligation, growing out of society, its wants and its needs, such as every good citizen has imposed on him, for the good of all society, to give information and knowledge of crimes committed or attempted; and if without malice such information and knowledge is given to the public, if the facts are so related that they induce the mind to readily believe them, a newspaper or a private citizen would be justified in publishing what is known. Defendants may justify by proof of the facts the conduct of the plaintiff, and it is called 'privileged;' but it would be perhaps more correct to say that it is a defense that can be made under the plea of the general issue, in which the acts, conduct, and declarations of the plaintiff may be shown concerning the subject-matter of the libel, and, if it be published in good faith, and without malice, defendants would be entitled to your verdict. If it fails to establish a full justification, it may still be considered as evidence in mitigation of damages, and the circumstances under which it was published must be borne in mind in determining the extent of any liability. If the plaintiff's own conduct and conversation induced the defendants to believe that he had attempted the bribery of Wilcox, the plaintiff could not complain. The plaintiff is a newspaper man, and had been engaged in the business of publishing a paper for several years, and knew and understood the object of the reporter of the News in interviewing him, and the Times paper was privileged in commenting as it did upon the conduct of Owen. If the conduct of the plaintiff in approaching Senator Wilcox, in regard to his senatorial action, was such as to lead Wilcox to understand he proposed a money consideration for him to act with the Republicans, or to influence his official action in any way, and the defendants published the article in question, believing the same to be true, from Wilcox's published statement and other published statements of Owen's action, then the article is privileged, and plaintiff cannot recover in this action. In all cases where persons have a common interest in the subject-matter under discussion, or of the communication, and the person or persons to whom the communication is made have a corresponding interest, every such communication, honestly made, in order to protect such common interest, is privileged, by reason of the occasion, and if the communication is made or published in good faith, and without malice, it is a bar to an action for libel; and in this case the facts and charges of which Mr. Owen complains are of common and general public interest, and of great importance to the public, and it was the duty of the public newspaper to publish fully and fairly all facts known in relation thereto coming from Owen and Wilcox, and if you find that the defendants did only this while acting in good faith, and without express malice, then your verdict will be 'No cause of action.' If Mr. Owen's conduct had been such as to lead an ordinarily careful, prudent man to draw the same conclusion as was drawn in the article published, then plaintiff cannot recover, and your verdict...