Atkinson v. Detroit Free Press Co.

Campbell, J. Atkinson sued for a libel, which contained reflections upon his conduct in relation to certain dealings and transactions connected with Gardner K. Clark. Mr. — 342 — Clark’s action, with which Atkinson was claimed to have been involved, was in brief as follows: Clark was a dealer in grain and grain contracts in Detroit, and bought and sold in considerable amounts. . On April 5, 1878, Clark had in various dealings issued checks to the amount, as outstanding at the close of the business day, of $11,096.39. At the same time on that day he had on deposit at the Mechanic’s Bank, $9867.51, and a check of Gillett & Hall, of Detroit, for $1014; leaving a deficiency or loss on the day’s balances of $214.88. That evening he called on Col. Atkinson for professional advice. His statement is that he had reason to fear that his bank account would be garnisheed by parties in Chicago, and his business facilities be crippled so that he could not pay his checks; and that he asked Atkinson whether he would incur any criminal liability by drawing his money, so as to make a uniform settlement. He says that being informed he would not, he' then told Col. Atkinson he proposed to go to Toronto for a few days until it was settled, and that Atkinson did not advise him to go. The next morning Clark went with Atkinson and drew out his money from the bank, a messenger with a check for the balance not designated having been previously refused payment on such a general voucher. They then went to Atkinson’s office, each carrying a part of the packages of notes, and at that place the Gillett & Hall check, which Mr. Clark had handed to Mr. H. E. McNeil to present at the 2nd National Bank on which it was drawn,'was brought back with the statement that the bank would only pay it in the regular course of bank exchanges. This check was handed to Col. Atkinson for collection, and he was given a list of Clark’s outstanding checks, and Clark desired him, if he could, to settle at one-fourth cash and the remainder on time. Clark went over to Windsor, and missing the early train on which his wife had started, remained in the immediate vicinity at Walkertown until the noon train, on which he left for Toronto, but stopped at Hamilton that Saturday night. — 343 — While in Windsor or Walkertown he entrusted the bulk of the money to McNeil, who during the day came back to Detroit, and delivered the principal part, of it to Atkinson, who left it for safe-keeping in the People’s Savings Bank, and on Monday took certificates of deposite for all but $1000, which sum he deposited in the Detroit Savings Bank. The amount of money received from McNeil is shown to have been about $8750. A portion of the balance is not fully explained. Atkinson met the creditors three times during the day, and telegraphed to Clark without getting any reply until in the afternoon. He went to Windsor'to find him, but failed to do so. At these meetings various conversations concerning settlement occurred, on which there is some conflict, but which are not important except in connection with the justification of the libel, to which reference will be made hereafter. At the last meeting he offered the terms given birm by Clark in the morning, but they were rejected. The communications concerning the settlement are among the matters involved in some controversy, both as to time and circumstances. Atkinson left the Gillett & Hall note at the People’s Savings Bank, and took therefor a certificate of deposit. Gillett & Hall stopped its payment, and Atkinson took it back and informed Gillett & Hall it would not be used to their prejudice. Hpon the terms of this communication some questions also were made at the trial, as raised by the libel. Two of Clark’s creditors, Messrs. Lasier and McDonald, visited him at Hamilton and induced him to return to Detroit, agreeing to see that he was not molested there. They reached Detroit early Monday morning, first calling on McNeil and then going to Col. Atkinson’s house, where they remained a while and appointed a meeting at - Clark’s house at a little later hour, with the expectation of coming to an arrangement. At the agreed time it was found by Lasier and McDonald that the other creditors stood out, and were disposed to prosecute, and accordingly they took — 344 — Clark back to Windsor. In tbe meantime some creditors had sent to Clark’s brother in Boston, and on Tuesday morning he arrived. Atkinson made a settlement and turned over the money and securities. This settlement is also involved in the libel. Clark, through his brother, settled for 75 cents cash, and got time for the balance. On Tuesday, the 16th of April, one week after the settlement, the libel complained of was published. The managing editor before publishing it had interviews with various creditors and other parties concerning its correctness. Some opposed and some did not oppose its publication. It was not published at their instance. After its publication a communication was published signed by Mr. Clark, and approved — -so far as his knowledge went — by Col. Atkinson. In publishing it the editors of the Free Press commented on it at some length, referring to facts outside of it, and in conclusion said: “It is difficult to see wherein the Free Press statement of Tuesday needs to be corrected in the interest of that truth which Atkinson wishes to spread before the public.” This last publication was introduced to show malice in repeating and adhering to the charges before made, and is not made the ground of action by itself. The publication sued on consisted of a continuous narrative, with a conspicuous heading, purporting to give a full account of the entire dealings of the parties said to have been involved in Clark’s affairs. The whole libel is set out as a single grievance, the account being so drawn up as to prevent any convenient separation of Atkinson’s part from the rest. But the grounds on which the principal grievances appear to be based are chiefly these : — The heading was in these words : “ An inside view — Some hitherto unpublished facts respecting the Ola/rk affad/r — The figure which several pa/rUes cut therein — The movements of Ola/rk and the action of his attorneys — OlarFs misfortunes* the biggest kind of grist for his lawyer — Rather slight services for a very la/rge fee — $125 gathered in for cprevious ser — 345 — vices ’ — A plain, unvarnished tale from which each reader cam, draw his moral. These references to professional misconduct, which are undoubtedly libellous on their face, appear from the body ■óf the publication, and are also averred by the innuendoes to relate to Col. Atkinson. It is claimed, and I think justly, that they indicate that Atkinson took advantage of Clark’s circumstances to make extortionate charges for services and pretended services. In the body of the principal article, the chief indications of an offensive character, as apparent from the words alone or as applied by the innuendoes, seem to include a series of acts, which are declared to “ reflect no credit on the parties of the second part, who have figured more or less prominently in the affair.” Atkinson and McNeil are the only persons mentioned, and it is averred the reference was made to plaintiff, who is also connected by averment with a previous reference to a “ ‘power behind the throne,’ which moved in a mysterious way.” Proceeding with the narrative, reference is made to Clark’s claim that he heard Chicago parties meant to garnishee his deposits, and it was stated that on Friday evening or Saturday morning, at McNeil’s suggestion, Clark called on Atkinson. Then follows this sentence, which is by averment alleged to mean that Atkinson gave advice which was improper, dishonest, and discreditable to him professionally: “ The advice that was given to Clark by Atkinson is of course not positively known to any beside those two, but the subsequent visit of Clark and Atkinson on Saturday morning to the bank, and their drawing out the money, to be followed almost immediately by Clark’s departure for Windsor, caused certain inferences to be drawn, too obvious to mention.” The article then stated that, “ On withdrawing his money, $9867, from the bank, Clark passed part of it to Atkinson, which, on arriving at the head of the stairs, leading to Atkinson’s office, was, Atkinson stated, passed back to Clark.” This last phrase, “ Atkinson stated,” is averred to mean that Atkinson retained a part of the money, and at — 346 — the close of tbe article is a further statement, with similar averment of' its reference to Atkinson, that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” In the narrative of the proceedings of Atkinson and the creditors on Saturday reference is made to the concealment from Atkinson by the creditors of their knowledge of Clark’s movements in Canada, as reported to them by Captain Sogers, the chief of police, who happened to be in his company, and also to certain matters connected with the' Gfillett & Hall check, concerning which it was intimated that Atkinson made false suggestions as to his own course in saving Gillett & Hall from responsibility. There are also further descriptions of Atkinson’s statements concerning the amount and whereabouts of the money drawn, and a reference to information derived from Clark by Lasier and McDonald, as to his communications with Atkinson and his transmission of the money to Atkinson, with further intimations, as drawn from the language directly, or implied by averment, that Atkinson made false statements to the creditors concerning this money, and concerning his authority. There is then a passage stating that Clark when found by Lasier and McDonald “ showed his lack of confidence in his home representatives by offering to telegraph and have a detective shadow the man who had his creditors’ money, until they could get hack to Detroit.” This is averred to refer to Atkinson, as also a further statement that Clark “finally consented to return to Detroit, and endeavor to regain possession of his, or rather, his creditors’ money.” In describing the subsequent occurrences in Detroit when Lasier & McDonald visited Atkinson, it is said that Clark informed them, that McNeil said he had given the whole money to Atkinson, but that Atkinson claimed it was $500 short, and this is averred to mean that Atkinson claimed he received so much less than he really did. It is subsequently stated that Clark’s brother was informed when he reached Detroit by three persons named T. P. Hall, Alexander Lewis and John G. Erwin, that the credit — 347 — ors were unwilling to trust Atkinson, and they thought a speedy settlement could be made if Clark could be got out from his influence. This is connected with an allegation that it meant to indicate that Atkinson was unworthy of credit in his profession. This was followed by a reference to-the final settlement, when Atkinson is averred to have rendered an account of which it is said “ a copy of its most important items is appended.” This reference gives special attention to an item italicised as for “previous ” services, which is alleged to mean that the charge was false and discreditable. It then is followed by a series of calculations including similar intimations as to charges-for services, and ending with the remark previously mentioned that “ some one has in the neighborhood of $500, which is, as yet, not present or accounted for.” This is alleged as “meaning-that plaintiff, in his employment as aforesaid, has dishonestly failed to account to his client for $500 entrusted to him.” There are two counts in the declaration, but for present purposes I need not refer to them at large. The defendant put in the general issue, with a general justification. The effect of the various statements claimed to be libellous was to charge Atkinson with giving dishonest and unprofessional advice, with making false statements in 'professional dealings, with incurring loss of confidence by misconduct, with embezzling moneys, and with making false charges for services, and extorting excessive compensation. All of these are in the declaration alleged as appearing in the libel, and intended to be conveyed by it. "When no defence is put in except the general issue, the language of a libel may be shown to fairly bear a mitigated sense. But when a libel is justified generally the doctrine is well settled that so far as the justification is concerned, it is justified as applied or explained by the innuendoes, and therefore there is no justification made out by the evidence unless the facts are proven true as alleged in the declaration, and with the meaning there averred, unless with the aid of the colloquium such meaning is repugnant. Townshend on Libel — 348 — and Slander §§ 212, 214, 215, 357, and notes; Bissell v. Cornell 24 Wend. 354; Fidler v. Delavan 20 Wend. 57; Tillotson v. Cheetham 3 Johns. 56; Gage v. Robinson 12 Ohio 250 ; Helsham v. Blackwood 5 E. L. & Eq. 409; Lewis v. Clement 3 B. & Ald. 702: 3 Br. & B. 297; Lake v. King 1 Wms. Saund. 130 and notes; 1 Chit. Pl. 433; Weiss v. Whittemore 28 Mich. 366; Cresinger v. Reed 25 Mich. 450; Bailey v. Kalamazoo Pub. Co. 40 Mich. 251. Unless every material item of defamation is established the plaintiff must recover his damages for so much ’ as is not fully justified. The truth of one part cannot deprive him of his action for that which is not shown to be true. It has not been suggested in this ease that any of the averments of the defamatory meaning of parts of the libellous article are repugnant or not maintained by the article itself as read in the light of the other averments. As to such statements as refer to hearsay, or are claimed to be capable of a double sense, the averment of their offensivé meaning makes them libellous if justified. Giving defamatory statements as coming from other persons does not deprive them of their defamatory character. Burt v. McBain 29 Mich. 260. A considerable number of the errors assigned are supposed to depend on these principles. Others relate to the reception or rejection of testimony. While the record is long, the questions • presented may be to some extent dealt with so as to avoid the necessity of great repetition. So far as the objections refer to the admission of testimony, they are chiefly based on the ground, which is undoubtedly correct as far as it may be applicable, that nothing was properly at issue that- had not some tendency to show the charges against Atkinson himself, well or ill founded in fact, or else credibly represented to be so, and published in that belief. How far the matters affecting hito personally can be separated from the rest is therefore one of the questions of some difficulty in the case. The record is free from some complications that have caused difficulty in other causes. While the good faith and — 349 — probable cause of belief of the managers of the defendant, corporation appear to be involved here as they are in most similar cases, there is no controversy concerning the deliberate and intentional character of the publication, and therefore no dispute as to the persons responsible. The repetition in the supplementary article, and the knowledge and approval by the managing editor, remove any such question from the issues. Neither is the article connected with any matter concerning which it could be regarded as privileged.. It does not relate to facts which could be lawfully published except as true. The first class of objections to evidence included some-extended narrations of Clark’s dealings on the fifth day of' April. There is nothing in the libel either in direct language or as made out by averments or innuendoes, which, charges Atkinson with any complicity in these dealings. A general notice of justification must undoubtedly be construed as covering all the ground which could be covered by special pleas. But no plea would be proper which attempted to-prove by way of justification facts not charged against the-plaintiff. If Clark had been plaintiff, the testimony of his-dealings on the 5th would be very material. The admission of this could only be pertinent to create a belief that there-was some dishonesty which bore upon the plaintiff. It. could hardly fail to prejudice him by coloring the whole case with matter to which he was a stranger. The libel begins his connection with Clark after the close of business-on the 5th, or in the morning of the next day. It was not disputed that it might be shown what was the condition of' his bank credits and checks out at that time, and who held them. But the details of his business dealings which led to-that condition of things could have no legitimate bearing on anything alleged against Col. Atkinson, and the justification cannot go beyond the charges. A second class of testimony objected to is the statements- and conversations of Clark with and to various other persons, while in Canada, including McNeil, McDonald and Lasier. The court allowed all of the conversations to be shown.. — 350 — And the reason given is found in what was said by the judge when McNeil was sworn, although similar rulings had been made before during the examination of McDonald and Lasier. "When McNeil was inquired of concerning the transaction between him and Clark, the court used this language : “ The claim in the article is, as I understand it, that McNeil and Atkinson and Clark were all together in this matter, and I think myself that what any one of' them did, •or any two of them did, would bind Col. Atkinson. It was -a part of the res gesta as I look at it. And it is a part of the article, I believe; it has been so stated.” Here the ■counsel for defendant was proceeding to show the court was mistaken as to the tenor of the article, when he was interrupted by the court, who proceeded as follows: “ As far as ■there is anything in the case at all — and of course it is a ■question for the jury — the testimony shows that McNeil and Atkinson and Clark met together, and that McNeil and Atkinson and Clark were together in the matter, and the .article, perhaps, substantially charges they were all together in the transactions; and I think you have a right to show [what] the conversations and transactions of the parties were ■at the time, to show what the real transaction was.” On further objection that it was not shown in any way that Atkinson had any knowledge of the conversations, the court nevertheless ruled that all the testimony might be let in. In a part of this ruling the court seems to have held, and the admission of testimony from McDonald and Lasier evi■dently could only be explained on this theory, that the fact that the article charged complicity between all three of thesp parties made the statements of any of them admissible. If all three had joined in this libel suit, there might be some difficulty in drawing lines very closely. But this suit is brought by Atkinson for libellous allegations against himself .alone, and hearsay evidence is no more admissible against him in this than in any other case. If charged as a conspirator, the charge cannot be assumed as true until proven, ■and it certainly is not competent to prove a conspiracy by •the declarations of a portion of the persons alleged to have — 351 — conspired. The conspiracy and its extent must be definitely and positively proved by legal evidence, before court and jury can give heed to any act or statement of persons not parties to the suit as to particular acts done under it. In this class of cases it is not permissible — on any theory of the order of proof — to allow hearsay that has not already been shown to be within some rule of agency. If, when the evidence is offered, there is not already in the case enough to show the agency, the admissions and statements of the supposed agent must be lcept out. Agency or conspiracy is the first thing to be shown. The evidence was not admitted on the ground that the order of proof was discretionary, but on broader and absolute grounds. The question therefore arises in a double aspect: First, whether there was any charge in the libel which was justified on any such basis • and second, whether any such conspiracy had been shown by legal evidence, on which it would have been competent for the jury to have found it. The principal if not the only questions raised here do not relate to the transactions while Clark was in Detroit, but to the transmission and reception of the money from Canada and dealings subsequent thereto, or to Clark’s departure from Detroit on April 6th. It is very plain that evidence of an agreement or combination, even for an unlawful purpose, has no tendency to prove such agreement for other purposes, and that where a conspiracy for wrong purposes is clearly proved, there is no responsibility for mutual conduct between the scope of that agreement. This is sufficiently explained in People v. Knapp 26 Mich. 112. Our attention has not been called to anything which indicates a charge in the libel that Atkinson was in any way implicated in any arrangement for the return of the money from Canada, or to any suggestion that when Clark left Detroit any such return was thought of. Nor is it pointed out in the argument in what way that return was calculated or intended to injure any one. The possession of the money by Atkinson prior to the last meeting of creditors on the 6th, and the purpose for which he held it, did become — 352 — material in view of otlier allegations concerning bis statements and course at that meeting. "But it does not appear that he was accused of any conspiracy to get it back into his-hands, or that it was returned in furtherance of any such conspiracy. In regarding the proof, therefore, we must not confound the testimony as to the fact of its return with that-which is hearsay. So far as McNeil’s testimony is concerned, it contains no statements of any consequence by Clark as to any act or declaration of Atkinson, and except for the ruling of the court that all were bound by each other’s acts, it would not. be very important. So far as it explains the purpose and conditions on which the money was put in McNeil’s hands, it had no tendency to prejudice Atkinson, and being uncontradicted has a strong bearing in his favor, as it shows no authority whatever for giving him the money, and indicates-that it was only given him as a safe custodian. But in regard to McDonald and Lasier the case is different. Both were allowed to give their impressions, although neither was positive on the subject, that Clark said he-directed the money to be put into the hands of Atkinson.. This, taken in connection with his other statements in regard to his fears about the money, and distrust of its safety, must-necessarily, in view of the ruling concerning joint liability,, have operated to Atkinson’s prejudice. Aside from these statements, there is nothing in the record tending to show that Clark was in any way concerned with Atkinson’s obtaining possession of the money. And leaving out these statements, the testimony introduced by the defendant and not-explained by any opposing proofs, tends to show that Atkinson did not receive the money for Clark himself or subject-to his disposal, but as the property of Mrs. Clark, to whom he gave vouchers for it. Some of these statements and suspicions, if they referred to Atkinson at all, upon which it will be necessary to dwell a moment hereafter, were made for a hostile purpose and in concert of action with the creditors. Upon what theory such declarations could be regarded as res gestee in a con — 353 — spiracy with Atkinson it is impossible to imagine. It is quite evident that the court below deemed it desirable to have all the transactions of Clark explained, as connected with the libel, on the same basis as if Clark himself were plaintiff. But I do, not think this identity of interest is within any proper theory of the case. In this connection it is proper to refer to testimony not merely in reference to the statements in the libel as to-Clark’s lack of confidence in his agents, but also as to the opinions of the creditors. No doctrine is better settled than that a person has no more right to put in circulation the opinions; or statements of other persons concerning private character than he has to publish Ms own. When such publication is made it cannot be justified by the proof that such views were expressed or entertained. Every justification must stand on facts and not on opiMons or hearsay. Any inferences warranted by evidence may be drawn by the jury, and of course may be pressed on their attention, but no man’s character can lawfully be assailed, and the object of every plea of justification is to directly assail it, by proof that other men do not have confidence in him, or speak evil of him. Burt v. McBain 29 Mich. 260; Fowler v. Gilbert 38 Mich. 292; Watkin v. Hall L. R. 3 Q. B. 396; M'Pherson v. Daniels 10 B. & C. 263; Townshend on Libel and Slander §211. . For similar reasons evidence of the conduct of the creditors among themselves, and not in Atkinson’s presence, and not commumcated to or acted on by him, can in no proper sense be treated as part of the res gestae to his prejudice. It is only his dealings that are in issue in this cause, and except as he is shown to have been in connection with others., their acts and sayings are outside of the controversy. I think, subject to such exceptions as would exclude hearsay evidence, and matters otherwise irrelevant, that it was not improper to allow testimony of the whole course of negotiation and correspondence which resulted in a settlement. It was substantially one train of transactions begun by Atkinson and completed by Charles F. Clark, and Atkin — 354 — son was more or less connected with the business until he turned over the funds and rendered his accounts. The terms of the settlement itself and whether it was complied with by Clark were not relevant. I also think it was proper to allow Mr. Quinby and the others connected with the publication to show the circumstances which induced them to publish it. These matters bore upon the motives of the publishers, and, while no complete justification, would be properly open to consideration on the question of damages, if not justified by other proofs. I see no good reason for rejecting- proof of the value of Atkinson’s legal services. Overcharging under peculiar circumstances was one of the most offensive suggestions of the libel. And a portion of the testimony excluded seems to have been relevant to the fact of garnishee proceedings as having once been had against Clark. The charge of the court throughout disregarded the rule that a justification cannot be made out without proof that the plaintiff was guilty of the acts charged against him in the sense averred in the declaration. As this error pervades the entire charge, it is not necessary to refer specifically to the various instances in which particular portions were referred to specially and either declared not libellous or left to the jury to interpret. The case was left to the jury with such instructions as would have authorized them to find, as they did find, a complete justification. This could only have been done by allowing weight to facts not proven by any legal evidence, and probably in accordance with the theories before referred to. But a plea of justification is an affirmative charge, to be made out by proof as strictly as if the defendant were a plaintiff seeking to enforce a liability. The libel itself is no proof, and no help to proof. Upon some very important charges there was no proof whatever, and upon some the defendant’s testimony exculpated the plaintiff directly. There was no proof tending to show that Atkinson had any money not accounted for. There was none that he and Clark had any difference in regard to the funds, or that he — 355 — had done anything with- them not authorized. IJpon other points the testimony was more or less subject to the infirmities before referred to. The result of the trial and the size of the record indicate that whatever may be the facts upon the issues properly in the case, it has been tried upon, other facts and different issues to a sufficient extent to render it impossible to sustain the verdict. The judgment should be reversed with costs, and a new trial ordered. Graves,. J. It is my opinion that the declaration discloses a cause of action and that the record contains evidence tending to support it, and sufficient to warrant consideration by a jury. In regard to the ruling and proceedings relating to •the objections against the conversations in Canada between Clark and McDonald and Lasier I agree with Mr. Justice Campbell, and I agree that a new trial is unavoidable. Concerning the other topics brought under discussion I reserve my opinion. Marston, C. J. concurred.