guish him from persons known by the latter name, the article complained of will not be presumed to have had reference to the plaintiff, and, as there is no evidence in the case that plaintiff is the person referred to in said article, their verdict must be for the defendant.

2. CHAMPLIN and LONG, JJ., concurred in the reversal of the judgment.

3. SHERWOOD, C. J., and CAMPBELL, J., favored the affirmance of the judgment.

Error to Wayne. (Brevoort, J.)

Submitted on briefs

November 6, 1889. Decided December 28, 1889.

Case. Defendant brings error. Reversed. The facts are stated in the opinion of SHERWOOD, C. J.

Black & Wilkins, for appellant, contended:

1. The publication complained of is not, as a matter of law, libelous on its face as regards plaintiff, because it does not name nor in any way identify or point towards the plaintiff, and it was not written or published concerning him.

2. When the libel does not, on its face, appear to relate to the plaintiff, it must be shown in what way it relates to him, notwithstanding the previous averment that it was published concerning him; citing Clement v. Fisher, 7 Barn. & C. 459; and where the plaintiff is not mentioned by name in the publication, such facts and circumstances should be alleged, by way of inducement, as to make it plain that he was the person intended; citing Miller v. Maxwell, 16 Wend. 9; Lewis v. Soule, 3 Mich. 514; and the innuendo, to wit, the allegation that defendant intended the plaintiff, cannot be made to perform the office of the inducement, and hence it is held that an innuendo cannot be proved; citing Snell v. Snow, 13 Metc. 278; Carter v. Andrews, 16 Pick. 1; Gibson v. Williams, 4 Wend. 320; Van Vechten v. Hopkins, 5 Johns. 226; Hawkes v. Hawkey, 8 East, 427; Roberts v. Camden, 9 Id. 93.

3. The principle in relation to defamatory words, as well as upon libels, is well settled, that the person slandered or libeled must be certain, and that if the words are uncertain, and do not designate any particular person, no averment shall make them actionable; citing Roll. Abr. 81, 1. 25, 79; Van Vechten v. Hopkins, 5 Johns. 228; People v. Cline, 44 Mich. 290; and see, on the question of identity, Jackson v. Christman, 4 Wend. 277,

284; 1 Greenl. Ev. § 493; Odgers, Lib. & Sland. 127-133, and cases cited.

4. If there are circumstances, aside from the use of the name "John Finnegan," which tend to show that the plaintiff is the person libeled, they must be proved, and to this end must be specially alleged in the declaration as matter of inducement; citing Miller v. Maxwell, 16 Wend. 9, 17, 18; Lewis v. Soule, 3 Mich. 514; Weiss v. Whittemore, 28 Id. 366, 371.

5. If the libel cannot, by any fair and reasonable intendment, from the language itself, be construed as reflecting upon the plaintiff, the court will not, in the absence of a colloquium pointing to its meaning, put a libelous construction upon it; citing Capel v. Jones, 4 C. B. 259; Snell v. Snow, 13 Metc. 278; and extrinsic matters cannot be introduced by an innuendo, but, when necessary, must be brought upon the record in the other way; citing Roberts v. Camden, 9 East, 93.

6. The article sued upon is not, upon its face, libelous, for it does not contain either the charge of larceny or of arrest for larceny, suggested by the plaintiff's innuendoes, and was not shown, and under the declaration could not be shown, to be libelous by proof of any extrinsic facts or circumstances, and it should not have been allowed to go to the jury.

7. An alleged libel, when relied upon as published, must be construed according to the plain and natural meaning of the language, which cannot be varied or extended by implication or by innuendo; citing Lewis v. Soule, 3 Mich. 514; Weiss v. Whittemore, 28 Id. 366; Miller v. Maxwell, 16 Wend. 9; Taylor v. Kneeland, 1 Doug. 67; Snell v. Snow, 13 Metc. 278; Townsh. Sland. & Lib. § 141; Farnsworth v. Storrs, 5 Cush. 412; Purdy v. Printing Co., 96 N. Y. 372.

8. The principle here laid down as applicable to the identity of the person libeled applies with equal force to the effect and meaning of the alleged libelous matter; citing Carter v. Andrews, 16 Pick. 1; Gibson v. Williams, 4 Wend. 320; Van Vechten v. Hopkins, 5 Johns. 226; Hawkes v. Hawkey, 8 East, 427; Roberts v. Camden, 9 Id. 93.

9. To enable the plaintiff to introduce testimony tending to prove that the words used should be understood in a sense different from their natural meaning, there must be some prefatory allegation and explanation of such particular meaning of the words, and the colloquium should connect with this introductory matter the publication of the words complained of, leaving to the innuendo its proper office of giving to these words the construction claimed for them; citing Adams v. Stone, 131 Mass. 433; McFadin v. David, 78 Ind. 445; Schurick v. Kollman,

50 Id. 336; Hays v. Mitchell, 7 Blackf. 117; Taylor v. Kneeland, 1 Doug. 67; Clarke v. Fitch, 41 Cal. 472; Nichols v. Packard, 16 Vt. 83; Brown v. Brown, 14 Me. 317; Harris v. Burley, 8 N. H. 256; Jones v. Diver, 22 Ind. 185; Ward v. Colyhan, 30 Id. 395.

10. The court erred in permitting witnesses to state that upon reading the alleged libelous article they understood that it referred to plaintiff. They were not claimed to be in possession of any extrinsic facts that would render their understanding of the article any more valuable than that of any other person; citing Smart v. Blanchard, 42 N. H. 137; Rangler v. Hummel, 37 Penn. St. 130; Van Vechten v. Hopkins, 5 Johns. 226; Gibson v. Williams, 4 Wend. 320; Snell v. Snow, 13 Metc. 278; Gribble v. Press Co., 37 Minn. 277.

Charles Kudner (Edwin F. Conely, of counsel), for plaintiff, contended:

1. The construction to be put upon any language, spoken or written, must be that which is consistent with the whole of the speech or writing. Thus the language of any part of a writing is to be construed with reference to the entire writing, and the language of any part of an oral discourse is to be construed with reference to the entire discourse; citing Townsh. Sland. & Lib. § 133, 137, and notes; Odgers, Lib. & Sland. 98, and notes; Morehead v. Jones, 2 B. Mon. 210.

2. For the purpose of its construction, language is to be regarded not merely in reference to the words employed, but according to the sense or meaning which, all the circumstances of its publication considered, the language may be fairly presumed to have conveyed to those to whom it was published; citing Townsh. Sland. & Lib. § 133, and notes; Locke, Cond. Understg. 35; Roberts v. Camden, 9 East, 93; Harvey v. French, 1 Cr. &. M. 11.

3. The intention or motive with which the words were employed is, as a rule, immaterial. If the defendant has in fact injured the plaintiff's reputation, he is liable, although he did not intend to do so, and had no such purpose in his mind when he spoke or wrote the words; citing Odgers, Lib. & Sland. 5, 6, and note a, 153, 154; Townsh. Sland. & Lib. (3d ed.) 134 (notes), 142, 681, 683; yet, if an honest mistake is made in an honest attempt to enlighten the public, it must reduce the damages to a minimum, if the fault itself is not serious, and there should be no unreasonable responsibility where there is no actual malice; citing Bailey v. Publishing Co., 40 Mich. 251.

4. The defendant's contention is that defamatory language which may, and in fact does, injure a person, is not actionable, unless so framed as to exclude application to any other person. The existence of any such rule is denied. If the article on its face can and does purport to defame some one, whether it touched the plaintiff is a question of fact, and it will make no difference that it is capable of injuring another; citing Odgers, Lib. & Sland. 127, 129; Maybee v. Fisk, 42 Barb. 326; Gidney v. Blake, 11 Johns. 54; Falkner v. Cooper, Carter, 56; Patterson v. Edwards, 2 Gilm. 720.

5. Plaintiff may call at the trial his friends, or those acquainted with the circumstances, to state that on reading the libel they at once concluded that it was aimed at the plaintiff; citing Odgers, Lib. & Sland. 129, 539; 2 Stark. Ev. 461: Smart v. Blanchard, 42 N. H. 137; Mix v. Woodward, 12 Conn. 262; Goodrich v. Davis, 11 Metc. 473; Miller v. Butler, 6 Cush. 71; McLaughlin v. Russell, 17 Ohio, 475; Smawley v. Stark, 9 Ind. 386; Russell v. Kelly, 44 Cal. 641; Machine Co. v. Souder, 58 Ga. 64; White v. Sayward, 33 Me. 322; Cresinger v. Reed, 25 Mich. 450; Van Vechten v. Hopkins, 5 Johns. 211; Gibson v. Williams, 4 Wend. 320; Rangler v. Hummel, 37 Penn. St. 130; McCue v. Ferguson, 73 Id. 333.

MORSE, J. The only error that I can find in this case is the refusal of the court to give the third request of defendant, to wit:

"If you find that at, and for a length of time prior to, the publication of the article sued upon, the plaintiff was universally or generally known as John D. Finnegan,' and not as merely 'John Finnegan,' and that such initial letter, 'D,' had been adopted by him expressly to distinguish him from persons known as 'John Finnegan,' then this article sued upon will not be presumed to have had reference to the plaintiff; and, as there is no evidence in the case that he is the person referred to in the said article, your verdict in that case must be for the defendant."

This request should have been given. If the plaintiff was generally known as "John D. Finnegan," and he himself had assumed that name to distinguish him from "John Finnegan," the use of the name "John Finnegan" by defendant could not be a libel upon plaintiff,

unless malice was shown in the publication, intended against plaintiff, or that the plaintiff was intended as the person mentioned under the name of "John Finnegan," and the publication was made without express malice, but with such want of care that the law would imply it.

I think the verdict, under all the circumstances of the case, was excessive; but this we, as an appellate court, cannot remedy.

For this reason the judgment must be reversed, and a new trial granted.

CHAMPLIN, J. I concur in the reversal of the judg

ment.

LONG, J., concurred with CHAMPLIN, J.

SHERWOOD, C. J. The action in this case is for libel, based upon the following article, which appeared in the Detroit Free Press, a newspaper published by the defendant in the city of Detroit, on April 24, 1887, and which article the plaintiff claims was printed and published of and concerning him. It is as follows:

"John Finnegan borrowed Wolfgang Fellers' coat from the latter's saloon on Wednesday night, without the proprietor's consent.. Last night he returned to the saloon, and tried to sell Fellers the coat. For this he was arrested, and locked up in the Central station, by officers Cahoon and Daley."

The plaintiff's declaration consists of a single count, and is as follows:

"For that the said defendant, wickedly intending to injure the plaintiff, heretofore, to wit, on the 24th day of April, A. D. 1887, at the city of Detroit, in said county of Wayne, did maliciously compose and publish of and concerning the plaintiff, in a certain newspaper called the Detroit Free Press,' a certain false, scandalous, and defamatory libel, containing the false, scandalous, and defamatory matters following, of and concerning the plaintiff, that is to say: