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GILBERT G. McDUFF v. The Detroit EVENING JOURNAL

COMPANY.

Libel and slander-Pleading-Damages-Evidence-Practice circuit courts-Conduct of counsel and court.1

1. The fact that an article is libelous per se does not render evidence of special damages, or of specific acts of others towards the plaintiff in consequence of its publication, admissible, unless alleged in the declaration.

2. Under an allegation of general damages in a libel suit, the issue is, what damages has the plaintiff sustained generally in the community where he is known, by the publication of the libelous article? and not what he has suffered in individual instances where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages, he must allege them.

3. A son was made trustee of his father's estate, and changed his residence to accept the trust. He brought a libel suit for an alleged false publication charging him with having "got away with the property," and with leaving his parents in a starving condition, and on the trial one of his witnesses was asked if he did not send for plaintiff to come and take charge of the estate, and answered, under objection, that he did, the communication being made by letter; which testimony is held irrelevant, it being of no consequence how he came to take charge of the estate, but, if material, the letter was the only competent evidence of the fact.

4. An editorial in a newspaper published in another state, referring to the subject-matter of an article for the publication of *Continued from Vol. 83.

'For full digest of points decided, see Table of Cases Reported.

which a libel suit is brought, but which is not shown to have been based upon such publication, is inadmissible as evidence in said suit, and if admitted the error is not cured by striking it out of the case.

5. Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury; and whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of the other, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejudice them, he commits an error of law for which the verdict and judgment must be promptly set aside.

6. It is never proper practice, when an objection to a question has been sustained, for counsel to state in the presence of the jury what he can or proposes to prove if allowed to do so.

So held, where a witness was asked on cross-examination if he had not taken a lewd woman into his house, and the answer was excluded, whereupon the counsel asking the question stated that if the objection was withdrawn he could prove the fact by the sister of the witness, and the court refused to instruct the jury that the remarks were improper, and that they should pay no attention to them, which statement and refusal are held to be reversible error.

Error to Wayne. (Brevoort, J.) Argued October 10, 1890. Decided December 24, 1890.

Case. Defendant brings error. Reversed. The facts are stated in the opinion.

Wilkinson & Post (Levi T. Griffin, of counsel), for appellant.

James H. Pound, for plaintiff.

GRANT, J. This is an action of libel, in which the plaintiff recovered verdict and judgment, and defendant appeals.

The libelous article is as follows:

"Humane Agent Vhay is investigating the case of Andrew McDuff [meaning the plaintiff], 73 Beech street, who

is charged with having got away with the property of his father and mother, who are now said to be starving in a Jones-street attic."

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Other publications subsequent to this upon the same subject were introduced by plaintiff under objection, and he then introduced evidence tending to show the falsity of the libelous article. Testimony was introduced on the part of the defendant tending to prove the truth of the charge, and good faith in its publication. The issue in the case was as clear and simple as can well be imagined. If the charge was not true, then the article was libelous. The questions to be submitted to the jury were:

1. The truth of the libelous article.

2. If not true, the amount of damages suffered.

3. The good faith of the defendant in mitigation of damages.

1. The first point raised in defendant's brief is that the cause should not have been submitted to the jury at all. This point was not raised in the court below, and is not assigned as error, and therefore cannot be considered here.

2. The following questions were asked the plaintiff, and answered under objection:

"Q Has there been any difference whatever in the treatment since the publication of these articles by any of your acquaintances from what there was before?"

Q. Will you tell us in what the difference consisted?" This testimony was objected to for two reasons:

1. Because it involved special damages not alleged in this declaration.

2. The questions were not confined to the libelous publication declared on, but involved damages resulting from other publications.

Both objections were well taken. The allegation of damages in the declaration is as follows:

"He, the said plaintiff, has been and is greatly injured

in his good name, fame, credit, and reputation, both as an individual and as such trustee, and brought into public scandal and disgrace, is suspected to have been guilty of the misconduct charged upon and imputed to him as aforesaid, and has been greatly vexed, harassed, oppressed, and impoverished, and hath been and is otherwise much injured."

No special damages are alleged; only general damages, in the general and usual language of declarations in libel

cases.

The article is libelous per se but that of itself does not render evidence of special damages, or of specific acts of others towards plaintiff in consequence of the publication, admissible, unless alleged in the declaration. Whenever a plaintiff alleges no special damages, he is presumed to rest content with those damages which are the natural result of the libelous publication upon his character and reputation and feelings, without proof of specific facts. He is presumed to have a good reputation and character. The damages he is entitled to recover are the result of the natural injury to these and to his feelings, coupled with the malice, or want of malice, with which the article was published. These the defendant is prepared to meet. He cannot be prepared to meet special instances of slight, avoidance, loss of hospitality on the part of friends and acquaintances, from whatever part of the world the plaintiff may choose to bring witnesses or to testify himself. If plaintiff desires to recover for damages for such special injuries, he must allege them. Bassil v. Elmore, 65 Barb. 627; Terwilliger v. Wands, 17 N. Y. 57; Dicken v. Shepherd, 22 Md. 399; Folk. Starkie, Sland. & L. § 378, and cases there cited.

The rules of pleading are founded upon reason and fairness. The issue in ordinary lawsuits is limited. The parties are more or less familiar with the transactions involved, and the defendant may fairly be presumed to

have some knowledge of the testimony against him, and what witnesses he can produce to meet it. In a libel suit, under an allegation of general damages only, the issue is, what damages has the plaintiff suffered generally in the community where he is known, by the publication of the libelous article? and not what he has suffered in individual instances where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages, he must allege them. No other rule would be fair and reasonable. Davies v. Solomon, 41 Law J. Q. B. 10. In that case the allegation was that the plaintiff had ceased to receive the hospitality of divers friends, naming them. It is laid down in Folkard's Starkie, Sland. & L. § 634, that

"A plaintiff, under an allegation of general injury, may show a general diminution of business; but, if he seeks specific damages, he must give specific evidence."

An examination of some of the records in libel suits heretofore decided by this Court has convinced me that this has been understood by the profession to be the rule. In Weiss v. Whittemore, 28 Mich. 374, it was decided that, under the allegation of a general loss of trade, the names of the customers driven away or lost need not be mentioned. But the Court held:

"The general allegation of the loss of trade is sufficient, and the declaration may be supported by evidence of such general loss."

It was held in Bourreseau v. Journal Co., 63 Mich. 437, that it was not competent for the defendant to prove distinct facts that had not been made part of the issue as framed, and that no one could be prepared in advance to anticipate every fact, true or false, which might be offered in evidence, and of which plaintiff had no notice. The evidence on the part of the plaintiff must be governed by the same rule as on the part of the defendant; and,