Smith v. Smith

• Decision Date: 25 January 1889
• Court: Michigan Supreme Court
• Parties: SMITH v. SMITH.

41 N.W. 499

73 Mich. 445

SMITH v. SMITH.

Supreme Court of Michigan

January 25, 1889

Error to circuit court, Eaton county.

Action for libel by Jessie Smith against John O. Smith. Verdict and judgment for plaintiff. Defendant brings error.

H.S. Maynard, (Philip T. van Tile, of counsel,) for appellee.

CHAMPLIN J.

This is an action for libel, alleging that defendant composed and published, or caused to be composed and published, in a certain newspaper, a notice signed by Henry O. Smith, as follows: "NOTICE. My wife, Mrs. Henry O. Smith, deserted me in my sickness, and has informed me I could get another woman, for she had quit. I forbid all persons from harboring or trusting her on my account. HENRY O. SMITH. Eaton Rapids, Dec. 27, 1883." The declaration contains two counts,-one alleging that the defendant composed and published, and the other that he caused to be composed and published, the libel set out. The plea was the general issue.

The first question raised is whether this notice contains libelous matter per se. We think it does. It charges her with deserting her husband in his sickness. If this charge be true, Mrs. Smith was guilty of the basest ingratitude, and of conduct deserving the contempt of all right-minded people. The words which follow show that the charge made was intended to be understood in a sense derogatory to the plaintiff.

The next question to be considered is, was the publication of the notice privileged? A qualified privilege exists in cases where some communication is necessary and proper in the protection of a person's interest, but this privilege may be lost if the extent of its publication be excessive. The rule is thus stated in Odger, Sland. & Lib. 225: "So with an advertisement inserted in a newspaper defamatory of the plaintiff, if such advertisement be necessary to protect the defendant's interest, or if advertising was the only way of effecting defendant's object, and such object is a lawful one, then the circumstances excuse the extensive publication. But if it was not necessary to advertise at all, or if the defendant's object could have been equally well affected by an advertisement which did not contain the words defamatory of the plaintiff, then the extent given to the announcement is evidence of malice to go to the jury." If a wife leave her husband's home without cause or provocation, and he is willing to suitably supply her with necessaries, or with money to purchase them he cannot be held liable, on the basis of a presumption of authority, or of an implied agency, for goods purchased by her on his credit. Notice to the public would not be necessary in such a case. It is only when he has permitted her to trade upon...