Sullings v. Shakespeare
| Decision Date | 29 June 1881 |
| Citation | 46 Mich. 408,9 N.W. 451 |
| Court | Michigan Supreme Court |
| Parties | SULLINGS v. SHAKESPEARE. |
A challenge of a juror for cause was overruled, and the juror was then challenged peremptorily. When the trial opened the party challenging still had one peremptory challenge unused. Held, that if the court erred in overruling the challenge for cause it was error without prejudice. In civil action for libel no damages can be allowed if the alleged libellous matter be true. Rulings as to evidence of publication of libel, held, not erroneous. An article written by plaintiff was erroneously printed, but there was no evidence to show that the alteration was the result of intention on the part of the parties. Held, that it could not be made the basis of damages for an action by the writer for malicious libel. Certain libellous matter, evidence of its truth circumstances under which it was written, and matter of damages, held, properly submitted to the jury.
Error to Kalamazoo.
Oscar T. Tuttle, for plaintiff in error.
O.W. Powers, for defendant in error.
Sullings sued Shakespeare, who was publisher of the Kalamazoo Gazette for publishing two alleged libels. One was claimed to be libellous because describing plaintiff as having performed a surgical operation by removing a "patty tuber" from the "hypogastruam" of one A.B. Smith. The other contained an account of a ride taken by plaintiff in Kalamazoo written in a style tending to throw ridicule on plaintiff as displaying ostentation, and as not used to such indulgences. The jury found a verdict for defendant. The case went throughout and the charge also was based on the theory that the articles unless in some way explained or accounted for were actionable. The chief objections to the rulings rest on the claim that as the case stood before the court they were too favorable to the defence. Before referring to the state of the issues and the evidence a preliminary question arose concerning the jury.
The record shows that one juror who had an opinion that it would require evidence to remove was challenged, and the challenge was overruled, and then he was challenged peremptorily. But it appears further that when the trial was opened plaintiff had still one peremptory challenge that he did not use. If by the overruling of the challenge anything could be inferred in the cause prejudicial to the rights of the plaintiff by compelling him to exhaust his peremptory challenges on persons liable to other objections, the case would be different. But when he runs no such risk the error does not appear to have been injurious. A second juror challenged for opinion seems by his answers to have no definite recollections at all, and we are not satisfied there was any error in holding him not disqualified. His answers were vague, and the court below evidently determined on his testimony that he had not formed such an opinion as would be material.
A considerable number of objections assume that if an article is maliciously libellous, its truth alone will not be a defence. In this there is a confusion of civil and criminal remedies. In a criminal prosecution the truth alone, if not published with good motives and for justifiable ends, is not always a complete defence. But in civil cases it is well settled that no damages can be given for a libel that contains no falsehoods. This disposes of the objections to a large amount of testimony concerning the circumstances of the second libel, which will be referred to more fully in its place.
At the beginning of the hearing, and before any proof of publication of the articles, an attempt was made to prove the circulation of the weekly edition of the Gazette, but the court refused to admit it at that time. The declaration did not aver publication in the weekly, and the offer was at least premature, and properly rejected. After the articles were proven an offer was made to prove the subsequent publication of the declaration, with hand notes referring solely to the attorney of plaintiff but not to the plaintiff. The court excluded the hand notes. As they had no reference to plaintiff we do not think the exclusion erroneous. The declaration, setting out the obnoxious articles in full, was admitted to show repetition of the libels. This ruling was not injurious to plaintiff.
In the further discussion of this case, the two articles will require separate reference. The court allowed defendant on cross-examination to explain that the article describing the surgical operation was not written by him. We can see no good reason for excluding this answer. Subsequent...
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