Proctor v. Houghtaling
| Decision Date | 12 June 1877 |
| Citation | 37 Mich. 41 |
| Court | Michigan Supreme Court |
| Parties | Louise C. Proctor v. Isaac Houghtaling |
Argued June 6, 1877
Error to Branch (Keightley, J.)
Case. Plaintiff brings error. Reversed.
Judgment reversed, with costs, and a new trial granted.
Loveridge & Barlow and Upson & Thompson, for plaintiff in error, to the irrelevancy of plaintiff's threats, cited Hamilton v. People 29 Mich. 180; Porter v. Henderson 11 Mich 20; Moyer v. Pine 4 Mich. 409; and of corrupt offers of witness 1 Greenl. Ev. § 52; Fletcher v. R. R. Co. 1 Allen 9; and of specific acts of misconduct on the part of plaintiff 2 Greenl. Ev. § 421; evidence as to plaintiff's character should state her general reputation, not particular acts, 1 Greenl. Ev. § 55; Stone v. Varney 7 Metc. 94; Leonard v. Allen 11 Cush. 241; and evidence of the currency of similar slanders, without limiting it to a period before the slander sued on, is inadmissible, Farr v. Rasco 9 Mich. 353; Burt v McBain, 29 Mich. 260; in collateral matters the defendant is bound by the testimony of a witness, and cannot contradict him, Dunn v. Dunn 11 Mich. 284; Fisher v. Hood 14 Mich. 189; Com. v. Buzzell 16 Pick. 157-8; 1 Greenl. Ev. §§ 449, 462.
Bowen & McGowan and John B. Shipman, for defendant in error, to the admissibility of specific acts of misconduct by the plaintiff, cited Farr v. Rasco 9 Mich. 353; Huson v. Dale 19 Mich. 36; Cresinger v. Reed 25 Mich. 450; Townsh. Slander § 211 n. 4. It is enough if the substance of the slander be justified, Townsh. Slander § 213; and circumstantial evidence is sufficient to support it, 2 Greenl. Ev. § 40.
Plaintiff sued defendant for verbal slander, charging her with adultery and with being a woman of gross unchastity. The defendant pleaded the general issue and gave notice of justification, which contains a number of charges against plaintiff, none of which are specific or issuable allegations of misconduct such as was charged in the slanderous accusations. The notice undertakes to set up a number of facts not amounting to criminality, but claimed to be such as would warrant suspicions of it. The charges of actual misconduct are of a vague character and contain no element of certainty whatever.
Upon the trial several items of evidence were introduced against objection, and complaint is also made of some other rulings of the circuit judge. Several of the items objected to may be classed together, and reference will be made to such as are important.
One William Davis having been called for the single purpose of proving the speaking by defendant of slanderous words set forth in the declaration, was allowed and required on cross-examination to state a remark of plaintiff's to the following effect: Such a matter might perhaps have been proper cross-examination of the plaintiff, had she been a witness, but it had no relevancy whatever to the issue on either side, which involved only the slander, and its justification. We can imagine no ground for its admission at all, and especially on cross-examination of this witness.
A witness John Houck having proven the uttering of slanderous words declared on, alleging habitual adultery with one Tinklepaugh, was asked on cross-examination, "Have you heard the same remarks from others?" and answered,
This was erroneously admitted. It was an attempt to prove by hearsay the facts in controversy. It was not confined to the time previous to the slander, and it was not sought in any way to be connected with the defendant as having led to his belief in the charges he made, which was one of the grounds urged on the argument. Neither can the character of plaintiff for chastity be assailed by that class of testimony. Nothing but general reputation is allowable for such a purpose. It cannot be attacked by proof of particular acts or particular suspicions. This doctrine is elementary. There is therefore, no ground on which the reception of this testimony was justifiable.
In this connection it may be proper to refer to a large class of testimony of particular acts of plaintiff which were introduced to throw suspicion upon her. These consisted of plaintiff's riding and visiting with various persons, and remarks made by plaintiff which were not proper, and acts of familiarity with different persons. The court admitted these things, and said "that evidence of previous familiarity or acts of illicit intercourse with individuals would be fairly admissible whether contained in the notice or not."
Nothing can be clearer than that the office of a notice is to present tangible issues, and not to introduce matters which form no part of the issue. Matters cannot be made relevant merely by insertion in a notice. That which would be immaterial in a plea cannot be material under any form of issue. In an action of slander there can only be two issues,--one of its publication and the other of its justification. Upon the trial, where there is no justification, there may be matters in mitigation, but these are not put in issue because they form no absolute defense.
It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue in the cause. She could have no means of defense against malicious fabrications which are by no means unusual in such cases, and the reputation of the purest persons could easily be ruined or damaged by allowing free scope to such testimony. As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent. A large mass of such rubbish has been introduced into this case, without any respectable authority to maintain its reception. The practice is not be commended.
We have also been unable to discover any relevancy in the testimony concerning a message sent by one of the witnesses to defendant, offering to clear him for two hundred dollars. While proper on the cross-examination of that witness it was a collateral inquiry on which no others could be questioned.
The court being asked to charge in substance that a plea of justification must...
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