Maclean v. Scripps ( 1883 )

Campbell, J.

The issues in this case, although several assignments of error appear in the record, were mainly rested on a few classes of questions. The libel sued on, which contained recitals tending to 'show that plaintiff, while a medical professor in the University, had illicit relations with a Canadian lady patient and kept up an obscene correspondence with her, was claimed by defendant to have been published under circumstances rendering him legally blameless. The plea of not guilty was accompanied by a notice which relied first, on privilege, resting on the previous publication in Canadian newspapers, without contradiction, and the right of the press to make the charges public as affecting the good fame and interests of the University, and as requiring investigation; second, the truth of the charges; and thi/rd, accord and satisfaction.

No errors are assigned bearing on the last two questions except as they relate to matters of evidence. The question of privilege and the treatment of it by the court are the main questions apart from the incidental interlocutory ones as to rulings of various kinds.

The court below held that the publication was in its nature privileged, and that the plaintiff had the burden of showing both its falsehood and that it was not published with proper motives. This ruling renders several questions unimportant and considerably narrows the legal issues.-

Upon the question of truth the plaintiff introduced a considerable amount of testimony concerning the state of health of the lady in question, and also to account for her history while at Ann Arbor. The methods of proof on this subject appear to have been the usual ones, and admissible if the facts of her condition were pertinent at all. We think her physical condition as affected by the diseased state described was pertinent to the inquiry and had some bearing on . the probabilities. Its weight, of course, would depend on its relation to other facts introduced on the question of innocence. Complaint is made that defendant was not allowed to contradict her sickness by evidence of her condition at her home thereafter. The court excluded testimony in regard to her employment at home and visiting, but told counsel they might contradict her evidence as to her weakness and sickness there. This they did not see fit to do. This was the only question relevant to contradict what had been shown for plaintiff, and there was no error in confining the testimony to that issue.

The chief controversy centered upon the genuineness of a scurrilous letter written over a fictitious signature and addressed to C. D. Brenton, at Tilsonburg, the home of Mrs. "Wardle, the lady in question. The theory of the defense was that plaintiff wrote it in Kingston and sent it to Mrs. Wardle under that assumed name. The handwriting of this letter was therefore the most important matter involved in the whole case. If plaintiff wrote it he had no cause of action. All of the charges in the libel originated in what was said and done about this letter.

The handwriting was made the subject of testimony from persons proving it in the ordinary way from personal familiarity with the plaintiff’s writing, and by experts on both sides giving testimony from its appearance by comparison. So far as the former kind of evidence is concerned there are no rulings which aré peculiar, or which in our opinion require special consideration. But there was an exclusion of certain expert testimony of which complaint is made as being very important, and as improperly ruled out. This is contained in a number of depositions in which the experts undertook to determine identity óf hands from a number of photographs of letters, including the Brenton letters and some letters claimed to have been genuine letters of plaintiff.

The originals of these papers were not claimed to be lost or out of reach. The fact that there were photographs' produeed, claimed to be from the originals, of itself indicates that no such difficulty probably existed, and the case was not claimed to depend on any impossibility of producing them. No authority seems to justify the proof of the handwriting of obtainable originals, by any species of imitation or copy. That photography may be used to obtain close imitations is no doubt true. But it is not a recognized fact that all of the appearances of a written document are capable of such exact reproduction that the copy will fully represent the original. It is the original paper which in this case raised all the difficulty. The proof to be admissible must relate to that. We do not think that secondary evidence was admissible. This question was before us in the Foster Will Case 34 Mich. 23, where our view was as now expressed. Hynes v. McDermott 82 N. Y. 49 is an instructive case in the same direction. Some other cases of similar purport were cited on the argument. We do not think the court erred in this ruling.

It is also objected that the defendant was not allowed to show that in the domestic disturbances attending the production of the Brenton letters, Mrs. Wardle did not deny the charge of her guilt. How far these facts were admissible in this suit is not now important, because the court below admitted proof of all the circumstances so far as relevant to Mrs. Wardle’s testimony, and only required proof of what was said and done, leaving the inferences to be drawn by the jury. There was no ruling which prevented the jury from becoming acquainted with all that the witnesses could say on the subject of express or implied confessions, or denials so relevant.

It is also 'urged that defendant was not allowed to prove his own motives and those of his subordinate McYicar in publishing the article. The error assigned as to McYicar was that he was not allowed to answer the single question, “ Why was this article published ?” That as to Scripps was, that having been called by the plaintiff to show his interest in and control over the paper, and his publication of a subsequent article referring to this libel suit, he was asked on cross-examination by his own counsel: “ "Will you state whether you had any purpose to injure him (plaintiff) in assenting to the publication, or on other grounds V’ This was objected to as not proper cross-examination, and also that if the article was privileged it must justify the grounds. The court ruled it out.

So far as McYicar’s motive was concerned it could not affect defendant one way or the other, except as communicated to defendant for his information. The court allowed all that passed between MeYiear and defendant before the publication to be shown fully. This was all that could be relevant here. So far as Scripps is concerned he also was allowed to show all that occurred previous to the publication and the information on which he acted. He testified that he put implicit confidence in McYicar’s statement, and that he had no ill-will against plaintiff; and did not know him and had never seen him. After this testimony it is difficult to see how he was injured by the exclusion of the other question. It would not probably have been error to allow it, but aside from its being put on cross-examination upon a different issue, the facts already drawn out rendered it of no further consequence beyond repetition. If the facts existing were such as to render the publication*-proper, the motives already indicated, if believed, would under the charge of the court dispose of any such question.

The chief discussion of law is on the question of privilege. Defendant claims the article was absolutely privileged. The court held it was privileged unless shown to be both false and published without good motives and maliciously.

That a person may publish falsehoods of another who occupies a position in which his conduct is open to public scrutiny and criticism, without any reference to the object to be secured by the publication, is a doctrine which has no foundation that we have been able to discover. Whether this article, taken as a whole, was privileged until reason was shown to the contrary, is not now important, and need not be discussed, because the plaintiff is not the complaining party, and the ruling below went as far as possible to hold it so. That the privilege is lost by malice is elementary law in such cases. The question which the court below discussed, and which is discussed here, is whether the malice must be actual personal ill-will to plaintiff, or whether the publication of what is necessarily injurious and done purposely and knowingly, and not for any good purpose or justifiable end, is legally malicious within the law of libel.

Upon this we think there is no room for serious question. The term “ malicious ” cannot be improper to designate a willful injury without just reason. It is not claimed that there is any room to question the injurious character of this article. Neither can 'it be questioned that the willful publication of it necessarily involves a design to produce such injury as is a necessary consequence of it. This being so, it would be a violation of all the analogies of legal language to hold that a willful injury is not malicious if made without any good cause. The Constitution, in regard to criminal prosecutions for libel, restricts the defense of truth to cases where the libel, even though true, is published for good motives and justifiable ends. This is only another form of saying that malicious publications are not privileged from criminal prosecution, even if true. In civil cases the truth is always privileged, but in cases of false charges their publication, if privileged, must be privileged by the occasion. Private reputation cannot be left exposed to wanton mischief without redress, and a doctrine that would put the reputation of strangers on a worse footing than that of acquaintances cannot be sound. The reiterated cautions concerning the presumption in favor of privilege left no ground for complaint as to the burden which was laid on plaintiff throughout. It may be noted that the defendant’s notice of defense is framed on this theory.

Complaint is also made concerning the action of the court touching certain questions put to the jury. The jury returned a general verdict for plaintiff. At the same time they answered a question whether the publication was made because the article had been published generally in Canadian papers injuriously affecting, in defendant’s opinion, the best in+erests of the University of Michigan, and for the purpose of calling attention thereto as a matter of public duty, and in order that there might be a public investigation by the regents; — to the first clause, “We say not generally to his knowledge, the evidence only going to show he had seen the two Tilsonburg papers.” The remainder they answered negatively. To the inquiry concerning any other or further motive they answered: “ Sensation and increase of circulation.” To a third question, as to acquaintance with the plaintiff, they answered they did not know of any from the evidence, but that he must have known plaintiff by reputation. As to spite, malevolence, ill-will or enmity of heart entertained by defendant, they said they had no means of knowing.

In answer to questions put by plaintiff, they answered in separate answers that defendant published the article in disregard of plaintiff’s rights and reputation, not caring whether it was true or false; that he did it to create a sensation,, and without any investigation of the truth of the charge.

Upon being sent back, by the acquiescence of both parties, to answer defendant’s third and fourth questions more distinctly, the court instructed them upon every question to answer yes or no, and to answer no on any question on which they were not satisfied. On their return they again answered the third and fourth questions by saying they did not know, and the first question, as a whole, in the negative.

These new answers were, in our opinion, identical legally with the first answers, and as court and counsel all agree that answering that they did not know was equivalent to a negative, we have no doubt that this is correct. Treating it as such, there is nothing in any finding inconsistent with the general verdict, unless upon the defendant’s theory of privilege, which, as already said, we do not think correct.

The only remaining questions which have any importance relate to alleged abuses of counsel in their addresses to the jury, which it is claimed made reference to things entirely improper. We have, however, no means of considering these questions. They form no part of the common-law record, and although the bill of exceptions recites the matters complained of, there was no ruling of the court and no exception. We have no right, under bill' of exceptions, to review anything but such action of the court itself as is excepted to. The power of this Court to review the action in circuit courts on trials is one derived entirely from the •statute and common-law practice on bills of exceptions. The law has left all things not legitimately belonging to ■exceptions to be managed by the circuit courts in furtherance of their own authority. We have no more power to review what they have not passed upon, than to exercise original jurisdiction in civil matters. ■ It would be going •entirely beyond our authority to notice what has not been ruled on and excepted to below.

The judgment must be affirmed with costs.

G-raves, C. J. and Cooley, J. concurred.