Wolff v. Smith

• Decision Date: 27 April 1897
• Citation: 112 Mich. 359,70 N.W. 1010
• Court: Michigan Supreme Court
• Parties: WOLFF v. SMITH.

70 N.W. 1010

112 Mich. 359

WOLFF v. SMITH.

Supreme Court of Michigan

April 27, 1897

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Action by Henry A. Wolff against William H. Smith. Judgment for defendant. Plaintiff brings error. Reversed.

Nelson De Long, for appellant.

Chamberlain & Cross, for appellee.

HOOKER J.

This is an action of slander, based on language used by the defendant, which is said to have amounted to a statement that the plaintiff was a criminal. The plaintiff was a candidate for the office of treasurer of the city of Muskegon, and among the causes of action alleged is a conversation which occurred after his defeat. The alleged slander consisted in statements that the defendant had been informed that the plaintiff was a safe-cracker, and had served time in a penitentiary for safe-blowing. The defendant's counsel was allowed to show by Mr. Niskern that about three years before the alleged slander he heard one Bassett make a statement at one time that the plaintiff had served a term in the state's prison. One Morris testified that two or three years before he heard that the plaintiff had been a safe-cracker. There was but one excuse for offering this testimony, inasmuch as it did not go to general reputation (see Newell, Defam. 890), and that was in mitigation of damages, and it was admissible, if at all, upon the theory that it was known and believed by the defendant, and "for and purpose of showing the quo animo of the defendant." Farr v. Rasco, 9 Mich. 356; Hudson v. Dale, 19 Mich. 34; Welch v. Ware, 32 Mich. 85; Proctor v. Houghtaling, 37 Mich. 41; Maclean v. Scripps, 52 Mich. 244, 17 N.W. 815, and 18 N.W. 209. In this case, not only was there no evidence to show that this statement of Bassett or that made to Morris, was communicated to the defendant but it appears that what he knew came from other sources. Hence it seems clear that this testimony was not properly admitted. The judgment is reversed, and a new trial ordered.

LONG, C.J., and MONTGOMERY, J., concur with HOOKER, J.

GRANT J. (dissenting).

This is an action of slander, in which the verdict was for the defendant. The slanderous words complained of are stated in four counts. The first count charges the defendant with saying to, and in the presence and hearing of, one James C. McLaughlin: "I don't see how Collins can support Wolf [meaning the said plaintiff for the nomination for the office of city treasurer of the city of Muskegon in the then approaching city convention of the city of Muskegon]. Did Pete Nelson tell you what Collins told me? Collins told me to watch him [meaning the said Wolff], for he was a safe-blower, and had done time for it; and now he is supporting him for treasurer." The second count charges defendant with saying to one Schorbach: "Hawley and Collins told me when I first came into office under Hancock that Wolff was a professional safe-blower." The third count charges defendant with saying to one Rodgers: "I don't see how you folks can support Wolff. He is a safe-cracker, and has served time in the penitentiary. I learned it right after I came into office; right after Hancock's death. Go and ask Collins if that isn't right." The fourth count charges that defendant said to one Clink and one Wilson: "I heard that Wolff was a safe-cracker, and that he had done time for it. I heard that he was a safe-blower, and an accomplished burglar. Shortly after I came here, Hawley and Collins told me to keep an eye on Henry Wolff; that he was an accomplished safe-blower; that he was a safe-craker. And they took me down in front of his store, and showed me Wolff as the man." The defendant, at the time of the alleged utterances, was under sheriff and acting sheriff of the county of Muskegon. Collins and Hawley were deputy sheriffs. Plaintiff was a candidate for the nomination of city treasurer on the Republican ticket. Plaintiff, defendant, and the other parties named were also Republicans. The alleged utterances in the first three counts were made shortly before the caucuses to choose delegates to the city convention. Each count closes with the allegation that the defendant, by the aforesaid utterances, charged him with the commission of crime, and with having been convicted and sentenced to prison therefor. Plaintiff secured the nomination, but was defeated at the polls. No damage was claimed by reason of his defeat. Defendant opposed the nomination of plaintiff. The witnesses McLaughlin, Schorbach, and Rodgers all testified that they asked defendant why he was opposing plaintiff's nomination, and that he replied that Collins, or Collins and Hawley, had informed him, when he went into office, that plaintiff was a professional safe-blower, that he had done time for it, and to watch him. He referred them to Collins as his authority. Defendant positively denied that he had ever stated that plaintiff was guilty of the crime charged, or that he had been sentenced and imprisoned. His statement of what he said is as follows: "McLaughlin asked me, I think, in this way,-something like this: 'What is the matter with you? Why are you opposed to Wolff for the nomination for city treasurer?' I replied in this way: I says, 'Is Bill Collins supporting Wolff?' He says, 'Yes.' I says, 'I don't see how he could conscientiously do it, if there is anything in the talk, the story told me, when I first came down here, or shortly after I came down here and went into office,-the sheriff's office.' He asked me what it was, and I told him. I told him that they told me that Wolff had been in the business of safe-cracking, and was a burglar, and had taken me down and pointed him out to me,-down on the street; and I told him, so far as I knew, I knew nothing of the facts of the matter, and in fact didn't know Wolff only by sight; and I told him that I didn't see how Collins could support him, if there was any truth in it. That is all there was of it." Mr. Collins, a witness for plaintiff, in rebuttal testified that he had so informed defendant, and told him that plaintiff "had done time for it." Three errors are assigned, one upon the admission of testimony and two upon the charge of the court.

I deem it unnecessary to discuss the errors alleged upon the admission of testimony. In my view of the case, the court should have directed a verdict for the defendant. Instead it was left to the jury to determine whether the defendant intended to and did charge plaintiff with a crime, as alleged in the declaration by the innuendoes. The court gave 11 of the 12 requests preferred by the plaintiff, which covered the entire theory of his case. One of these requests reads as follows: "There is no more privilege attending the repetition of the false charges of crime than if the defendant made a charge upon his own responsibility, and I charge you that there is no proof in this case showing any privilege for the defendant ever to charge the plaintiff with crime, or in stating in the presence and hearing of others that he had been told the plaintiff was guilty of safe-cracking and safe-blowing, or that he is a professional safe-cracker or safe-blower, or that he had served or done time for the same in the penitentiary." The court also charged that plaintiff had not been guilty of any crime, and that to say of him that he was a professional safe-blower and had served time in the penitentiary, was a slander; and that, if defendant had heard such report, he had no right to repeat it. The declaration asserted that defendant charged plaintiff with a crime. The court instructed the jury that such a charge was not privileged, yet plaintiff complains because the court refused his twelfth request, viz.: "To hold that false charges of a defamatory character made against a candidate for an elective office, where he is falsely charged with a crime, are privileged as matters of law if made in good faith, and that the party making them is absolutely shielded against liability, would be a dangerous doctrine, and it is not allowed under the law." The language of this request was taken from the opinion of this court in Bronson v. Bruce, 59 Mich. 467, 26 N.W. 671. The request was properly refused. The argument of a court in its opinion is not always proper to be read to the jury. It may be, and often is, proper, where it gives a definition, or lays down a rule of law applicable to the case. The language of this request was wholly inapplicable to any issue presented to the jury, or to any fact to be determined by them. The court, at the request of the defendant, gave the following instruction: "That unless the defendant intended in some of the conversations he had with the persons named in the declaration, namely, J. C. McLaughlin, Philip Schorbach, Lincoln Rodgers, or Steven H. Clink, and William Wilson, to charge plaintiff with being a safe-cracker or a safe-blower, or with having done time in the penitentiary, or unless such a charge can be fairly inferred from the language used, and the language used was so understood by the persons to whom they were uttered, then the plaintiff has not maintained his action, and your verdict must be for the defendant." The giving of this request is alleged as error. The instruction was correct, under the defendant's version of the words uttered by him. He was asked why he was opposing...