Scripps v. Reilly

• Decision Date: 10 January 1877
• Citation: 35 Mich. 371
• Court: Michigan Supreme Court
• Parties: James E. Scripps v. Cornelius J. Reilly

35 Mich. 371

James E. Scripps v. Cornelius J. Reilly

Supreme Court of Michigan

January 10, 1877

Heard October 4, 1876; October 5, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Superior Court of Detroit.

Judgment reversed, with costs, and a new trial ordered.

E. C. Hinsdale, C. I. Walker and M. E. Crofoot, for plaintiff in error.

The court erred in permitting the several exhibits to be read in the opening by counsel for plaintiff, and especially those which were rejected when offered in evidence on the trial, and those not offered at all. It is not only the right, but the duty of counsel for plaintiff to open his case by briefly stating the nature of the action, the substance of the pleadings, the issue made, the facts and circumstances on which he relies, and in general the nature of the evidence to be adduced, or, in the language of the rule, to make "a full and fair statement of his case and of the facts which he expects to prove:" Burrill Pr., 232; Circuit Court Rule, 62; and while the mode of exercising this right by counsel is unquestionably largely under the control of the court, and to a great extent matter of discretion on the part of the trial judge: Cory v. Silac, 5 Ind. 372; Dobbins v. Aswall, 22 Ark. 624; Brooks v. Perry, 23 Ark. 32; State v. Page, 21 Mo. 257; Frier v. H. & St. J. R. R. Co., 35 Mo. 410; Cartwright v. Clopton, 25 Ga. 88; yet there may be such an abuse of this discretion as to seriously affect the rights of parties, and such abuse of discretion is within the supervisory power of a court of review: Ayrault v. Chamberlain, 13 Barb. 234; Morris v. Wadsworth, 17 Wend. 117; Preston v. Walker, 26 Iowa 208; Marshall v. Am. Ex. Co., 7 Wis. 18; Yawkie v. Richardson, 9 Mich. 532; Hill v. People, 16 Mich. 354; Tacher v. Hennicker, 41 N. H., 322; Mitchum v. State, 11 Ga. 629; Lloyd v. H. & St. J. R. R. Co., 53 Mo. 509; Defries v. Phillips, 63 N. C., 57; and it is difficult to conceive of a more flagrant abuse than the one that took place in this case.

The court erred in admitting in evidence the publications from the Evening News referring to other individuals than the plaintiff: Frazer v. Penn. R. R. Co., 38 Penn. 110; Robinson v. F. & W. R. R. Co., 7 Gray 92; Gahagen v. B. & S. R. R. Co., 1 Allen 189; the only conceivable purpose of this evidence must have been to show that the paper was engaged in publishing libels, and that defendant was a man of generally malicious character, or that he was negligent in permitting libels to be published; and the proof that defendant was a malicious person, or wanting in reasonable care in the conduct of his paper, must be either by evidence of general character or by the circumstances of the libel.

The admission of the publications after the date of the libel was erroneous; though a mere repetition of a libel is admissible in evidence: Watson v. Moore, 2 Cush. 133; Leonard v. Pope, 27 Mich. 142; yet subsequent publications, unless mere repetitions, are not admissible for any purpose: Thomas v. Cress-well, 7 Johns. 276; Root v. Lowndes, 6 Hill 518; Saunders v. Baxter, 6 Heisk. 369; Fry v. Bennett, 28 N. Y., 328.

The defendant claimed he had an entire right to publish the charge contained in the divorce bill, or a fair statement of it, and this the court below fully conceded, but further held in effect that defendant lost his protection of privilege as to the charge itself by the comments made on the charge, adding to the facts stated in the bill, and this irrespective of the character of such comments. We submit that so far as the publication gave a false statement of the charge actually made it was not libelous, and the fact that something else was added does not make defendant liable for publishing the privileged charge, especially when the additional matter is entirely separate or separable from the account of the judicial proceedings: Stiles v. Noakes, 7 East, 493, 506; Curry v. Walter, 1 Bos. & P., 525; Rex v. Wright, 8 T. R., 298; Ryals v. Leader, 1 L. R., Ex., 296; Barrows v. Bell, 7 Gray 301; Lewis v. Levy, E. B. & E., 536; but of course if the comments themselves are libelous, the publisher is responsible therefor.

The court erred in taking from the jury, and in determining himself as matter of law, the question whether the publication complained of was a fair statement of the charge made in the bill, and whether the comments thereon were fair and reasonable: Barrows v. Bell, 7 Gray 315; Gassett v. Gilbert, 6 Gray 94; Lewis v. Levy, E. B. & E., 541.

The court also erred in charging there was evidence to go to the jury upon the subject of carelessness and neglect on the part of the defendant in the conduct of the paper, and in holding that "if there was a want of care or solicitude for the proper conduct of the paper, it had the effect of actual malice." Negligence, to have the effect of malice, must be gross; and simple "want of care or solicitude" is not equivalent to actual malice.--Cooley Const. Lim., 457; Detroit Post v. McArthur, 16 Mich. 452.

The refusal to grant the following request to charge proposed by defendant was erroneous, viz.:

"That as the plaintiff in the second count of his declaration has set out the words of an alleged libel, if the jury find such words to be only a fair statement of the fact that Camille Robbins had filed an amended bill charging the adultery of his wife with the plaintiff, then the publication would be privileged, if the proofs show that said Robbins had filed such amended bill containing the charge of the adultery of his wife with said plaintiff, and the plaintiff cannot recover under said count."

Other similar requests were made and refused as to the other counts.

We have adopted by rule the English practice as to declarations, and have followed these rules, and in this case these rules were followed with the forms found in Chitty's Pleading; C. C. Rule 18; 2 Chitty Pl., 622 (9th Am. Ed.)

And the pleader, to avoid the literal reading of Reg. 5 (1 Chit. 414), took advantage of the license which had grown up in violation of this, under the practice of adding several counts for the same cause of action as "safety valves" to the pleader, and alleged in this second count that the defendant did "publish a certain other false, etc., * * * * libel" (1 Chit. 413, note h), and then alleged that among other things it contained the following words: "Camille by this time had concluded that Mary did not think much of him and commenced a suit in the superior court for divorce on the ground of cruelty and fraud; subsequently, however, he amended his declaration and added the charge of adultery committed with two persons, namely, Cornelius J. Reilly, who was her legal adviser, and Wm. McDougall, who has since left Detroit."

The pleader then having in this count made his election to state the words which he counted upon as libelous in this second count, as separated from words counted upon in the other counts, the defendant put in issue the specific allegations of the several counts by his plea of the general issue, and he had a right to have the verdict of the jury upon each count, as though the issue formed upon each count was a separate action.--1 Chit. Pl., 416.

Then we think we have a clear right to the charge indicated in the request, as the plaintiff himself had set out the libel in the second count as a mere statement of the commencement of a suit, and the cause for which it was commenced; and if the jury should find from the evidence that such was the fact, then this publication was privileged.

Griffin & Dickinson, for defendant in error, argued that the publisher may be charged as the author or composer of the libel, the publication being the gist of the action; that the rule in regard to all torts is, that all who concur or assent to the wrongful act are guilty.--Townshend on Libel, § 67; 4 Bacon Ab., "Libel," B. 1, p. 447; Com. v. Morgan, 107 Mass. 205; 3 Greenl. Ev., § 169; that defendant was also liable to be charged as composer upon the ground that the article was written by his agent under circumstances which make the principal liable.

Each of the counts of the declaration sets forth a cause of action, and in such case it is of no consequence under which the plaintiff recovers. The court ought not in any event to charge the jury with reference to the several counts of the declaration. A decision upon points affecting the declaration can be reached by instructing the jury upon the facts without special reference to the declaration itself, or to particular counts of it.

The plaintiff was entitled to introduce any evidence that tended to show malice: Duncan v. Thwaites, 3 B. & C 556; the law attaches to the publication of the article itself malice of such quality, whatever may be its technical term, as supports the averment of the declaration in this respect. The plaintiff, to anticipate probable defenses as to malice, may, in putting in his evidence, show: (1) that there was merely the color of a lawful occasion for the publication, and that defendant, instead of acting in good faith, assumed to act for some justifiable end merely as a pretense to publish and circulate defamatory matter: Jellison v. Goodwin, 43 Me. 287; (2) that the publisher was instigated, not by a desire to attain a justifiable end, but by actual malice, for the purpose of injuring another: State v. Burnham, 9 N. H., 34; (3) that he had no grounds for believing the facts published were true, and that in fact he did not believe them; and that the publication was not made in good faith for the purpose of inducing reformatory measures: Palmer v. Concord, 48 N. H., 211; Carpenter v. Bailey, 53 N....