Cyrowski v. Polish-American Publishing Co.

Kuhn, C. J. (after stating the facts). The first assignment of error relates to the testimony given by Dr. Sadowsky, who testified that sleeplessness, headaches, and loss of weight would be the natural results of mental anguish suffered by the plaintiff because of the libels published against him. This testimony was offered and received for the purpose of proving that the mental anguish was real and had expression. That mental anguish and suffering is a proper element of damages is not disputed, but it is urged that evidence of physical pain and disability is too remote in character and cannot be considered the usual, ordinary, or necessary consequences of the wrong. While it is true that no recovery can be had for physical illness or ailment claimed to be a result of the libel, no such claim of damages was submitted to the jury, and we cannot see any impropriety in admitting the testimony to show the severity of the mental anguish which was a proper subject of damages. It must be borne in mind that the article in question was clearly libelous per se and that a retraction was demanded. In place of a retraction other articles were published similar in tenor to the first. A plea of justification was filed, but no effort to justify it was made on the trial. The next assignment of error relates to the admis [656] sion of the testimony of statements of third persons not produced as witnesses relating to remarks made by them, their conduct, and opinions as exhibited and expressed by them concerning the plaintiff after some time had elapsed from the publication of the alleged libelous attack. It is. claimed that this testimony was incompetent on the ground that it was hearsay. The declaration in the instant case alleges the following as to damages : “In consequence of the committing of which said grievances by the defendants, the plaintiff has not only been greatly injured in his good name, credit, and reputation and esteem, and has been brought into public scandal, ridicule, and disgrace, has been and is shunned by many persons> but also, by means of which the said plaintiff has been and is greatly injured in his said practice of his said profession, and has fallen into great discredit, disgrace, dislike and disrepute amongst his clients and amongst the Polish people residing in said State of Michigan and elsewhere generally and amongst other good and worthy citizens of the State of Michigan with whom he had dealings in his profession and otherwise, as aforesaid, and who by reason and on occasion of the writing and publishing of said libel have altogether refused to have any further dealings with him in his profession as aforesaid, and plaintiff has been greatly vexed and harassed and injured thereby, and has lost and been deprived of great gains and profits in his said profession, which would have arisen and accrued to him had not the said defendants composed and published and caused the same to be composed and published as aforesaid the said false, malicious, defamatory, and injurious libel of and concerning said plaintiff; and plaintiff, by reason of said false, malicious, defamatory, publication as aforesaid, lost his said position of pre-eminence amongst the Polish people of said State of Michigan and his said representative capacity thereof and his said choice of high political honors, and also thereby suffered great mental pain, anguish, and mortification and thereby he is and was otherwise greatly injured.” The plaintiff claimed that he had become a leader [657] among the Polish people, and that he had established himself in a position of trust and confidence among them, and as a result of the libélous attack his good reputation was destroyed, which resulted in great pecuniary damage to him in the loss of business as a practicing attorney. This element of damage is particularly set forth in the declaration, and it would seem proper to show the fact that the libelous article had been read by proving the statements and conduct toward him of persons who had in all probability read the article. A similar question arose in Park v. Detroit Free Press, 72 Mich. 560 (40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544), where Mir. Justice Campbell, in speaking of similar testimony, said: “Plaintiff was not allowed to show that various other persons called his attention to the libelous article. We can see no reason why such facts were not pertinent. The mischief of a libel consists in the fact that it is actually seen by third persons. The circulation of a paper is allowed to be shown, as making it probable that the article has been read by several persons. Evidence of actual knowledge cannot be inferior to presumption. In Steketee v. Kimm, 48 Mich. 322 (12 N. W. 177), a claim was made that there could be no presumption in an American community that articles in Dutch would be read by any one; but we had no difficulty in finding that Hollanders could and might do so. It would certainly have been proper in that case to show that Hollanders actually did read the libel, and there was convincing proof that it affected the plaintiffs business. In many, if not most, cases, actual pecuniary injury to business could not be shown without incidentally or directly indicating that there must have been individual readers.” The authorities seem also to agree that the rule against hearsay is not violated by such testimony because the truth of the remarks is not at issue, but the point in controversy is rather the uttering of the libelous remarks. See 1 Greenleaf on Evidence, § 100; [658] 2 Jones on Evidence, p. 648. In the case of McDuff v. Detroit Journal Co., 84 Mich. 5 (47 N. W. 671, 22 Am. St. Rep. 673), by the testimony disputed an attempt was made to show that the plaintiff was slighted by certain acquaintances. It was held that it was inadmissible because the allegation in the declaration as to damages was general, and no special damages were alleged. The declaration in this case alleges special damages, and the testimony in question was therefore proper in support thereof. The third assignment of error had to do with testimony, which was admitted, of third persons who advised the editor of the defendant publishing company to question the plaintiff about the truth or falsity of said alleged libelous article before publication. We are of the opinion that it was properly admitted as bearing upon the good faith of the defendants, and as showing malice. Another assignment of error relates to the admission of evidence of plaintiff’s good reputation previous to the publication complained of. In this State, as held in Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474), the rule is that the law presumes that the character of a plaintiff is good until attacked, and he can safely rest upon that presumption, but nevertheless in this case we find a plea of justification filed which is in effect putting upon the record a repetition of the defamatory charge and includes a deliberate averment of its truth. No attempt was made on the trial to justify and it must be said that it takes it from under the rule above referred to as the plea clearly put his reputation in issue. Testimony was offered and admitted concerning the early training and life of the plaintiff. We see no error in admitting this testimony as it was helpful to the jury in determining what the injury from the libelous declaration was. [659] Complaint is made of the charge of the court in that it did not give the defendants’ theory of the case and did not give proper instructions as to the liability of defendant Welzand and on the subject of malice. The article being clearly libelous per se, and the defense being justification in which the defendants admittedly failed, the trial judge was justified in submitting to the jury the only real question for their consideration, to wit, damages, which he did in a clear and able charge which outlined the entire situation with great fairness. ' Mr. Welzand was a stockholder, director, and general manager of the publication. It appeared from the evidence that Zielinski, the editor, told Welzand that he was going to write about the plaintiff after he had received the pamphlet of the Civic Uplift League, and that the writers of the paper’s editorials were under his authority and discipline. Welzand testified that after reading the article he called Zielinski’s attention to the fact that they might get into trouble over publishing it, but did nothing to prevent him from writing further on the subject, and, after answering plaintiff’s letter demanding a retraction, made no effort to see that a retraction was published. His connection with the corporation was such that the court was justified in submitting his liability to the jury. Other assignments of error, not being specifically mentioned, have been examined and found to be without merit. We are satisfied that the verdict as modified by the trial judge on the motion for a new trial is not excessive under the proofs in this case. It not affirmatively appearing that the trial resulted in a miscarriage of justice, the judgment is affirmed. Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.