Park v. The Detroit Free Press Co.

• Decision Date: 28 November 1888
• Citation: 40 N.W. 731,72 Mich. 560
• Court: Michigan Supreme Court
• Parties: PARK v. THE DETROIT FREE PRESS CO.

40 N.W. 731

72 Mich. 560

PARK v. THE DETROIT FREE PRESS CO.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Wayne county; GARTNER, Judge.

Action for libel, brought by Peter E. Park against the Detroit Free Press Company. Verdict and judgment for defendant, and plaintiff brings error.

CAMPBELL J.

Plaintiff sued defendant for publishing a libel against him to the effect that he had been the day before, which was June 23 1888, arrested and brought before one of the justices in Detroit on a charge of bastardy, and on his plea of not guilty was released on his personal recognizance to appear on June 29th for his preliminary examination. To this cause of action defendant pleaded the general issue with notice of special defense, to the effect that one of its reporters, who was a prudent and skillful person, obtained the information in good faith from the clerk of the court and that it was published without malice or negligence, and is claimed to be privileged; that on the next day a correction was published as conspicuously as the libel, to the effect that the plaintiff was the attorney for the prosecution, and not the defendant, in the bastardy case, and that the mistake occurred through the justice's clerk, who gave plaintiff's name as the defendant, and that on the file-wrapper plaintiff's name was so placed as to appear as defendant; that everything was done in good faith, and that the falsehood was due to mistake. Defendant claimed that under the statute nothing but actual damages, within the limited statutory definition of that term, could be recovered. Upon the trial proof was made of the publication of the libel, and of the circulation of the paper, and that plaintiff was and had been for several years a married man, and a member of the Detroit bar, and the father of children. On cross-examination, plaintiff testified that he was employed to prosecute Clixby, the defendant in the bastardy case, and was not present in court when he was arrested, but attended the examination subsequently and after the libel was published. There was some conflict as to what occurred, subsequently to the publication of the libel, in the clerk's office, between Mr. Kinney, the clerk, and Mr. Robison, the reporter; and some conflict whether Robison got his information from the clerk, or from examining the file. The justice swore positively that Robison asked him about the case as the Clixby Case first, and that he referred him to the clerk, and Robison denied that he saw the justice at all. There was also a conflict whether Robison knew plaintiff. The apology was published the day after the libel. Above it was an open heading, reading as follows: "Record of the Courts. The legal Mills are Grinding Chiefly on Matrimonial Misunderstandings. Correction of an Annoying Error. Probate Notes. Miscellany. Correction of an Annoying Error." This was published in the same part of the paper with the libel. It is not disputed that, so far as plaintiff is concerned, it was a full retraction. Several questions are presented concerning the reception and rejection of evidence. The court below instructed the jury at some length, but to the general effect that the liability of the defendant was relieved by the statute of 1887 by the retraction, if there was no bad faith; that the article charged no crime, unless the reporter had reason to believe the plaintiff was married; that the fact that plaintiff was not living with his family-his wife being insane-was one of the facts to be taken into consideration, as well as his not being known to the reporter; that if the case was within the statute,-no actual damages having been shown,-there could be no recovery. Further reference will be made to the charge more specifically. The jury under the charge, although not positively, were practically, ordered to find, and did find, for the defendant.

As the statutes of 1885 and 1887 were the decisive elements in finding a verdict for the defense without even nominal damages, that question requires first attention. By the statutes of 1885 (Laws 1885, p. 354) it was enacted that, in suits brought for the publication of libels in any newspaper, the plaintiff should only recover actual damages if it shall appear that the publication was made in good faith, and did not involve a criminal charge, and its falsity was due to mistake or misapprehension of the facts; and that in the next regular issue of said newspaper after such mistake or misapprehension was brought to the knowledge of the publisher or publishers, whether before or after suit was brought, a correction was published in as conspicuous a manner and place in said newspaper as was the article sued on as libelous. By section 3 of the act of 1885, it was enacted: "The words 'actual damages' in the foregoing section shall be construed to include all damages the plaintiff may show he has suffered in respect to his property, business, trade, profession, or occupation, and no other damages." The statute of 1887 merely changed the words "the foregoing section" to "this act." Laws 1887, p. 153. This act was held by the court below to exempt defendant because bastardy is not in the strict sense a criminal proceeding, unless the defendant or Robison knew, or should have known, plaintiff to be a married man, so that the charge would be adultery. If the case depends on that statute, and if that statute is valid the construction given goes beyond the language, and does not seem to be the proper one. When a man is charged with doing what if done by him can be nothing else than a crime, it cannot be said not to involve a criminal charge, because other persons might not be so guilty. It would lead us into conjecture to seek out any meaning in the statute beyond the language. There seems to have been an idea in the minds of its framers that charges of crime were so much more heinous than other charges as to make it proper to punish them in heavy damages in spite of good faith, when charges of things not crimes are treated as comparatively trivial. But every one knows that there are many technical crimes involving no infamy, and acts not indictable which are utterly disgraceful. We can hardly imagine the legislature meant to disregard the common-sense rule that it is the thing charged on the person libeled as done by him, and not by some one else, which makes the libel. It must especially injure him, if believed, among those who know him personally, and if to them the charge made involves a crime, the degree of which makes it disgraceful, it involves it none the less because the publisher did not so consider it by mistake of fact or law.

But we do not think the statute controls the action, or is within the power of constitutional legislation. This will, in our judgment, appear from a statement of its effects if carried out. It purports to confine recovery in certain cases against newspapers to what it calls "actual damages," and then defines actual damages to cover only direct pecuniary loss in certain specified ways, and none other. In some of these defined cases the proof of any damages in this sense would be impracticable, and in all it would be very difficult. They are confined to damages in...