Smedley v. Soule

• Decision Date: 13 November 1900
• Citation: 84 N.W. 63,125 Mich. 192
• Court: Michigan Supreme Court
• Parties: SMEDLEY v. SOULE et al.

84 N.W. 63

125 Mich. 192

SMEDLEY v. SOULE et al.

Supreme Court of Michigan

November 13, 1900

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Charles Q. Smedley against Charles E. Soule and others. Judgment for plaintiff. Defendants appeal. Reversed.

Plaintiff is an attorney at law residing in the city of Grand Rapids. He was employed by the mayor of the city of Grand Haven, on behalf of the city, in a case which involved the veto power of the mayor. The circumstances of that litigation are stated in Baar v. Kirby, 118 Mich. 392, 76 N.W. 754. For such services plaintiff presented a bill against the city. The council were a tie upon its allowance. The mayor claiming the right to vote in case of a tie, voted for it. The clerk refused to issue his warrant for the amount. Thereupon plaintiff brought suit in the Ottawa circuit court by mandamus to compel the clerk to issue it. He was defeated there, and brought the case to this court. A statement of that case will be found in Smedley v. Kirby, 79 N.W 187. Subsequently the question of bonding the city to pay certain of its indebtedness, including plaintiff's bill was submitted to a vote of the electors. That submission took place before the decision in this court of Smedley v. Kirby. The mayor issued a manifesto urging the electors to vote for the bonds. The defendants--four of them aldermen and the other the city attorney--issued a circular in opposition to that of the mayor. This circular contained the following language: 'Does any citizen believe that he [the mayor] did not have a 'divy' in the notorious fraudulent Smedley bill? * * * The notorious Smedley bill that the mayor has included is one of the items the people are asked by him to bond the city to pay. Don't have to be paid. Judge Padgham has taken care of that. The people will not have to stand that fraud.' The declaration, in setting forth this article, contains appropriate innuendoes that plaintiff had an agreement with the mayor to divide the amount of his services with him, that his bill was a fraudulent one, and that the circuit court had so decided. With their plea of the general issue the defendants filed a notice of special defense, claiming that they 'only imputed fraud to the mayor, and that their only reference to plaintiff's name was in designating the bills as the mayor had designated them, and not to make any personal reference to the plaintiff; and that they did not impute, or intend to impute any fraudulent, uncomplimentary, unprofessional, or other wrong conduct to the plaintiff in making said publication.' Plaintiff recovered verdict for $1,500, of which $500 was for injury to feelings and $1,000 for other damages.

Walter I. Lillie and Charles E. Soule (George A. Farr, of counsel), for appellants.

Smedley & Corwin and Knappen & Kleinhaus, for appellee.

GRANT J. (after stating the facts).

1. The court held, and so instructed the jury, that 'the declaration avers an injury to plaintiff's fame and character as an attorney. * * * The publication complained of tends, upon the face of it, to the injury of plaintiff in respect to his profession and business.' It is insisted that the declaration sets forth no injury to plaintiff in his professional or business capacity, but only in a general way to his feelings, credit, and reputation, and that without such allegation no recovery can be had. The declaration is general. It states that he is an attorney at law and solicitor in chancery, residing in the city of Grand Rapids and doing business in the counties of Kent, Allegan, and Ottawa, and especially in the city of Grand Haven; that he had many friends, acquaintances, and clients in said city of Grand Haven; that he acted in the conduct and management of said business with integrity and skill, and thereby derived and acquired great gain and profit; that he was reputed, esteemed, and respected among all good and worthy citizens to be an attorney and a person of good name, fame, reputation, and credit in said counties; that the defendants, contriving and wickedly and maliciously intending to injure him in his good name, fame, and credit, and to bring him into public scandal, infamy, disrepute, and disgrace among his neighbors, published the libel complained of. After setting forth the libel and appropriate innuendoes, the declaration alleges that 'by means of the committing of said several grievances * * * he hath been and greatly is injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace with and amongst all his neighbors,' etc. The declaration does not allege any loss or injury to his profession, and the record is barren of any evidence tending to show any such loss or injury. The learned counsel for plaintiff cited Henkel v. Schaub, 94 Mich. 542, 54 N.W. 293. The distinction between the declaration in that case and this is apparent upon examination. In that case the declaration expressly alleges the intent to 'injure plaintiffs in their property by bringing said property into bad repute and lessening the value thereof.' It expressly alleges a loss and damage to the plaintiffs by reason of the libel; alleges of what the loss consisted, and that the amount thereof was $600. The declaration in this case does not attempt to allege injury to plaintiff in his profession, or that he has been injured therein. It is urged that a presentation of a bill by an attorney is a necessary incident to his business, and any disreputable conduct alleged in connection therewith should be held to be, upon its face, spoken of him in his profession. If plaintiff had not performed these services, but the claim for such services rendered by another had been assigned to plaintiff, and he had presented that claim to the common council, and the same charge made, could it be said that that was an attack upon him as an attorney, and without any colloquium to show that it was spoken of him as an attorney, or intended to injure him in his profession, and to allege resultant damages? Where A., a physician, brought an action for slander against C. for stating that A. had been guilty of adultery, the declaration, as does this that plaintiff was an attorney, stated that A. was a physician. The declaration failed to allege that the act was committed while in the exercise of his profession, though it did allege that it was said 'of and concerning the said plaintiff, so carrying on such profession as aforesaid, and of and concerning him in his said profession, and of and concerning the said rumor and report, * * * that is to say, 'Have you heard that it is out who are the parties in the crim. con. affair that has been so long talked about?'' The court arrested the judgment, and said: 'After full examination of the authorities, we think that in actions of this nature the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession.' Ayre v. Craven, 2 Adol. & E. 2. That case was approved in Gilbert v. Field, & Caines, 329, in which case the declaration contained no colloquium respecting plaintiff's profession. After stating the rule, the court say: 'The reason assigned for the rule is that, unless the words appear to be spoken concerning one's profession, office, or trade, he cannot lose or be discredited thereby.' In Van Epps v. Jones, 50 Ga. 238, under a statute which, like ours, authorizes the recovery for damages to one's profession, trade, or business, it is said: 'The authorities indicate that the charge must be of something that affects his character generally in his trade. A particular act may or may not do this, and the matter would depend on the colloquium. But the authorities are uniform that the words must be charged to have been used in reference to one's trade or profession. The speaker must have had the trade or profession of the plaintiff in view, and utter the words in reference to it, as if he should say of a grocery merchant he keeps false weights, or of a lawyer that he won't pay his clients the money he collects for them. Starkie, Sland. 109, 126. It would be entirely a new ground of action to hold that it was actionable to utter of a lawyer that he refused to pay a particular debt, there being nothing in the words or in the colloquium to indicate that the speaker was alluding to him as a lawyer. Such a...