Provost v. Brueck

Grant, J. (after stating the facts). 1. There are 48 assignments of error, most of which relate to the [141] charge of the court. The charge is eminently fair, was a correct statement of the law of slander applicable to the case, and very clearly defined the issue which the jury were to decide. It will appear from the portions of the charge above given that the judge very emphatically and clearly instructed the jury as to the right of the defendant to attack the immorality which he believed to exist in his congregation, and that for this he could not be held liable, unless such immorality was charged to the plaintiff. It would be of no benefit to the parties or to the profession to here discuss the rule laid down by the circuit judge, and which has been so frequently discussed and determined by the courts and text writers. Isolated sentences might be selected which in themselves would be objectionable, but to which no valid objection can be made when they are considered in connection with the entire instruction. We find no error in the charge of the court. 2. It remains to consider some exceptions to the admissibility of testimony and statements of counsel. Counsel for plaintiff, in his opening statement, referred to the origin of the trouble, namely, the destruction of the pew, and what then occurred, as the evident cause of the use of the language. Testimony was also introduced as to what then occurred. This was received under exception. It was a part of the res gestee, and was competent as bearing upon the question of malice. 3. Two witnesses were permitted to testify under objection that they understood the defendant, in what he said, to refer to the plaintiff. These witnesses testified that he looked towards the plaintiff while he was talking, and pointed to him. One of these said he understood defendant to mean plaintiff, because ‘ ‘ he broke the pew he was sitting in; and when he made the motion with his hand about the razor, and about his being a barber, because he was the only barber in the church, I understood that he meant Eugene Provost, the barber.” The defendant, in his cross-examination, admitted that [142] lie used the word “barber” in his talk, and that he had no other barber except the plaintiff in his church. In view of these facts, we do not think it was possible for the jury to be misled by the testimony, which might properly have been excluded. This subject was discussed in Farrand v. Aldrich, 85 Mich. 593. 4. Complaint was made of certain statements made by the counsel for the plaintiff during the progress of the trial. The question was asked the defendant on cross-examination: “Did you have any liquors in your house?” Under objection, this was promptly and properly ruled out as immaterial. Counsel then stated: ‘ ‘ He preached against the effect of having whisky in the house, and I want to find out if he had any himself.” Again the court ruled that the testimony was incompetent, without even waiting for an objection to be made. Thereupon plaintiff’s counsel again stated: “We offer to prove that he keeps large numbers and kinds of liquors in the house, and that he is in the habit of using them himself.” Again the court said: “I don’t think it could be material.” Plaintiff’s counsel then stated: “It is where a man preaches against such things, and undertakes to justify himself for attacking the people on that ground.” The court promptly said: “I don’t see how it would make any damages, or prevent any.” Plaintiff’s counsel again stated: “It would have something to do with the credibility of his testimony; not if he is honest about it, but goes around the street preaching against it.” To these remarks the defendant’s counsel objected as prejudicial, and took an exception to them. Counsel should have rested content with the ruling of the court when the question was asked. It was clearly incompetent, and it is impossible to conceive that counsel for the plaintiff did not know it. It deserved severe reprimand from the court. The court properly ruled the testimony out, as wholly immaterial. We think, however, that it would be a reflection upon the intelligence of the jury to ■say, as a matter of law, that they were prejudiced by [143] these remarks. Such matters must be left largely to the trial judge,' whose duty it is to promptly check such statements when offered, and to instruct the jury that they must pay no attention to them. The judgment is affirmed. The other Justices concurred.