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Evidence

slander suit.

Mr. H. Monroe Dunham for appel- here only as bearing on the weight lant.

and credence that the community, in Mr. William J. Branstrom, for ap- hearing these things, might give to pellee:

his utterances.” In an action of this kind, it is al

Counsel for defendant claims it ways proper nd admissible to low the financial standing of the defend

was error to permit such testimony ant, in order that the jury may know

It would not

of reputed wealth. what influence his word would have in

have been competent to show dethe community.

fendant's actual wealth. McCloy v. Botsford v. Chase, 108 Mich. 435, 66 Vaughan, 185 Mich. N. W. 325; Loranger v. Loranger, 115 189, 151 N. W. 667. wealth of deMich. 686, 74 N. W. 228; Sanford v.

It was proper to fendant in Houghton, 184 Mich. 47, 150 N. W. show his reputed fi334; McCloy v. Vaughan, 185 Mich. nancial standing for the purpose 199, 151 N. W. 667; 25 Cyc. 508; Brown

stated in the instruction.

Ibid.; v. Barnes, 39 Mich. 214, 33 Am. Rep. 375.

Brown v. Barnes, 39 Mich. 211, 33 The court did not err in granting

Am. Rep. 375; Botsford v. Chase, plaintiff's motion to strike out certain

108 Mich. 432, 66 N. W. 325; Santestimony and also certain declara- ford v. Houghton, 184 Mich. 44, 150 tions contained in the opening state

N. W. 334. ment of counsel for defendant.

Under the plea of the general is25 Cyc. 506; Brewer v. Chase, 121 sue defendant gave notice that one Mich. 531, 46 L.R.A. 397, 80 Am. St. Preston, of the township of Dayton, Rep. 527, 80 N. W. 575; Schattler v.

Newaygo county, came to defendant Daily Herald Co. 162 Mich. 127, 127 N. W. 42; Gripman v. Kitchel, 173 Mich.

in the interest and behalf of the Odd 245, 138 N. W. 1041; Flynn v. Boglar

Fellows Lodge, of which organizasky, 178 Mich. 165, 144 N. W. 516;

tion plaintiff and defendant were Newell, Slander & Libel, 2d ed. p. 350 members, and asked him in confiBrewer v. Chase, 121 Mich. 529, 46 dence about the matter in suit, and L.R.A. 397, 80 Am. St. Rep. 527, 80 N. he informed him of what he had M. 575; Kenney v. McLaughlin, 5 Gray, heard. 3, 66 Am. Dec. 345; Clair v. Battle At the trial witnesses were perCreek Journal Co. 168 Mich. 473, 134

mitted to testify to their memberN. W. 443; People v. Talbot, 196 Mich. 528, 162 N. W. 1017; Whittemore v.

ship in the order of Odd Fellows, Weiss, 33 Mich. 348; Evening News

and that plaintiff had made some Asso. v. Tryon, 42 Mich. 549, 36 Am. progress in joining the order. Most Rep. 450, 4 N. W. 267; Bell v. Fernald, of such testimony 71 Mich. 267, 38 N. W. 910; Owen v. was given to show parties to secret Dewey, 107 Mich. 67, 65 N. W. 8; why the witnesses Smedley v. Soule, 125 Mich. 192, 84 N. visited and talked with defendant W. 63; Zanley v. Hyde, 208 Mich. 96,

about the alleged slanderous utter175 N. W. 261.

ances. We are not persuaded of any Wiest, Ch. J., delivered the opin- harmful error in this. ion of the court:

Complaint is made because a witThis is an action of slander. It is ness was asked whether the mother claimed defendant charged plaintiff of plaintiff was a "sister Rebecca." with the crime of incest with his The question was not answered. sister. The specific language is not Counsel for defendant offered to necessary to decision, and is, there- show common report of plaintiff's fore, omitted.

improper relations with his sister, At the trial testimony was permit- by statements claimed to have been ted to be given of the general repu- made by the sister to schoolmates tation of the wealth of defendant. four or five years before the trial, The court instructed the jury that and the spread of the story; that it "the wealth or property possessed was considered by him and others as by this defendant is permitted in idle gossip, and as such repeated by

-relations of

order.

(222 Mich. 278, 192 N. W. 595.) him without malice. The court held ago that Mr. Mansfield had heard it, such defense inadmissible, and that the same as all the other neighbors the slanderous statements made by in that vicinity.” defendant were actionable per se, It is not quite clear, but we asand limited defendant to justifica- sume that this related to what, it is tion of his utterances. Thereupon claimed, had been stated by Mike defendant rested his case without Donahue, and the incident of plainany testimony.

tiff's father seeking explanation Defendant's requests to charge from Mr. Donahue, but, be that as also bring up the question of the it may, defendant's claim was that right of defendant to show that he he only repeated the Donahue staterepeated common rumor. Was de- ment, and that such statement was fendant entitled to show, in mitiga- common rumor of long standing, to tion of damages and to rebut malice, his knowledge. If the alleged slan

derous matter was current in that that he was not the originator of the slander, but only repeated long- community before the utterance standing common rumor or gossip? thereof by defendant, and had come It is no defense, and cannot mitigate to his knowledge, and he believed the

same true, and he only repeated the damages, to show Damages-slander-common that others uttered

same as gossip or rumor, then he talk as mitiga

had a right to make such a showing the same slander, or tion. that it was common

in mitigation of damages, but for no talk. It may be shown in mitigation

other purpose. Farr v. Rasco, 9

Mich. 353, 80 Am. Dec. 88; Wolff v. of damages, however, that the common talk came to the knowledge of Smith, 112 Mich. 359, 70 N. W.

1010; Brewer v. Chase, 121 Mich. defendant before he uttered the

526, 46 L.R.A. 397, 80 Am. St. Rep. slander, and he believed it, and did

527, 80 N. W. 575. no more than repeat what he had

Defendant should have been perheard. It cannot, however, consti- mitted to show, in mitigation of tute justification; it may mitigate damages and to rebut the presumpLibel-repetition

damages, it may re- tion of malice, what he had heard by

but the legal prejustification.

way of common rumor before he utsumption attending tered the slander, and that, if such a charge actionable per se, but it

be the case, he believed the charge cannot affect malice in fact. We

he so made to be true. find, in counsel's statement to the For the error pointed out the jury of what he expected to prove, judgment is reversed, and a new the following: "We will show you trial granted, with costs to defendthat as far back as four or five years ant.

of rumor as

ANNOTATION.

Evidence of wealth or reputed wealth of defendant in action for libel or slan

der.

I. View that pecuniary circumstances of

defendant are irrelevant, 4. II. View that pecuniary circumstances are

II. b-continued.

3. Compensatory damages; re

relevant:
a. In general, 7.
b. On behalf of plaintiff:

1. Generally, 7.
2. Exemplary, punitive, or vin-

dictive damages; actual
wealth, 8.

puted circumstances, 12. c. On behalf of defendant:

1. Generally, 17.
2. In mitigation of exemplary,

punitive, or vindictive dam

ages, 17.

II. C-continued.

3. As a measure of compensa

tory damages, 18. 4. Defendant's right as depend

ent on plaintiff opening the inquiry, 19.

II.-continued.

d. Where more than one defendant,

20.
e. Where a corporation is defend-

ant, 21.
f. Miscellaneous matters, 22.

I. View that pecuniary circumstances of

defendant are irrelevant. The rule adopted by most courts, that the jury may consider the financial condition of the defendant in a defamatory action, has not met with approval by all the courts, and it is firmly established in several states that in such an action the jury should not be allowed to consider the defendant's wealth or poverty, for any purpose. The cases are: Ware v. Cartledge (1854) 24 Ala. 622, 60 Am. Dec. 489; Donaldson v. Roberson (1916) 15 Ala. App. 354, 73 So. 223; Morris v. Barker (1847) 4 Harr. (Del.) 520; Vailor v. Ponder (1895) 1 Marv. (Del.) 408, 41 Atl. 88. (see Sclar v. Resnick (1921) 192 Iowa, 669, 185 N. W. 273, infra, II. b, 3); Rosewater v, Hoffman (1888) 24 Neb. 222, 38 N. W. 857; Palmer v. Haskins (1858) 28 Barb. (N. Y.) 90; Austin v. Bacon (1888) 49 Hun, 386, 3 N. Y. Supp. 587; Enos v. Enos (1890) 58 Hun, 45, 11 N. Y. Supp. 415 (reversing judgment for plaintiff for error in admitting evidence of wealth), order in subsequent appeal from new trial in (1891) 61 Hun, 623, 17 N. Y. Supp. 604, which is affirmed in (1892) 135 N. Y. 609, 32 N. E. 123 (where the court said the rule that the wealth of a defendant cannot be shown in aggravation is based upon the fact that the circumstance has no relation to the injury suffered by the plaintiff—referring to Myers v. Malcolm (1844) 6 Hill (N. Y.) 292, 41 Am. Dec. 744); Tymann v. Schwartz (1924) 209 App. Div. 886, 205 N. Y. Supp. 493; Young v. Kuhn (1888) 71 Tex. 645, 9 S. W. 860; King v. Sassaman (1901)

Tex. Civ. App. 64 S. W. 937. It may be noted here that the majority rule represented by the cases cited in subdivision II. has not met with entire approval in several of the states where it is followed. The supreme court of Connecticut expressed strong disapproval of Bennett v. Hyde (Conn.) infra, II. b, 3, in Case v. Marks

(1866) 20 Conn. 248, and, while not overruling that case, declared evidence of the financial condition of the defendant only admissible as bearing on compensatory damages, refused to permit a defendant to prove his own poverty, and said of the Bennett Case: “We could better reconcile it to our views of correct principle if we could see that wealth alone-especially in this state of society-gives, of course, to its possessor, rank and influence. If it does in some instances, this is not so commonly true, we think, as that a new and important legal principle should grow out of it."

It may also be observed here that the several general rules set out in subdivisions II. b, 2, 3, c, and e, of the annotation, have met with opposition in courts not going to the extent of the cases cited above; the contrary authorities are given in the particular subdivision where applicable.

In Ware v. Cartledge (Ala.) supra, holding it reversible error to admit evidence of defendant's wealth on behalf of plaintiff, the attention of the court seemed to be directed only to the relevancy of such evidence as bearing on the question of actual damages, it being said: “We suppose this proof was offered for the purpose of inducing the jury to imply that the defendant's wealth entitled him to a more exalted position in society than less wealthy persons would occupy, and thereby rendered his slanders more withering and blasting in their consequences than they would be if uttered by one whose estate was not so large.” It was denied that such was the case; the court, while admitting that wealth often forms one element in fixing a man's position and elevation in society, said that such was not always the case, but that wealthy men "are often found among the most despised, and least influential, among us. While, on the other hand, rank, influence, and power are all combined in persons of

very inconsiderable estate.” Another ant's wealth was not offered to show reason given by the court for its de- his influence, the inference being that cision is that if proof of wealth is ad- it was given with a view to punitive missible to aggravate damages, com- damages. “Establish it as a rule," the mon justice would require that a con- court said, “that the plaintiff may, in verse rule should apply where the de- this action, prove the wealth of the fendant is poverty stricken, and points defendant as an independent item of out the reason which makes the con- evidence in the cause, and such eviverse proposition unsound; e. g., al- dence will be used for quite a different lowing poor people partial immunity purpose than simply to ascertain how for vindictive torts. The reasoning of much injury the plaintiff actually susthe court on this point is approved in tained in consequence of the charYoung v. Kuhn (1888) 71 Tex. 645, 9 acter, standing, and influence of the S. W. 860, supra. Further attention defendant, and juries will be invited was called to the complications liable and eloquently urged to punish the deto arise were such evidence to be ad- fendant by a large verdict, which he mitted, such as an offer of proof by can so easily pay.” It may be noted the defendant that, though his wealth that no reference is made in the opinis large, his influence is small.

ion to the case of Lewis v. Chapman Donaldson v. Roberson (1916) 15 (N. Y.) infra, II. b, 3, in which a New Ala. App. 354, 73 So. 223, held evi- York court of equal dignity reached dence of defendant's financial stand- the opposite conclusion, and it is posing inadmissible even where punitive sible that that case would have been damages are recoverable.

followed, had the opinion been before In Palmer V. Haskins (1858) 28 the court, inasmuch as the court took Barb. (N. Y.) 90, Marvin, J., in con- pains to distinguish a number of cases sidering the wealth of a defendant in from New York and other states. In a defamatory action as it bears on the regard to the wealth of the defendant injury sustained as related to the as it bears on punitive damages, the measurement of compensatory dam- court in the Palmer Case said that a ages, observed: “It may be admitted small verdict may in some cases sufthat the slander of a man of high ficiently punish a wealthy man, as character and influence would be more “men of wealth are quite apt to value destructive to the character of the and appreciate property as highly as party slandered than the slander of those in moderate means." Whether one without character and influence. the size of the verdict is determinative Hence, the character and standing in of punishment is said to be speculasociety of the defendant have long tive, and “it will be dangerous to inbeen admitted in evidence in this class struct a jury that they may measure of cases. But I am not satisfied that the verdict by the ability to pay.” The wealth is a necessary ingredient to reasoning in the opinion on this point constitute character, standing, and does not seem well seasoned, and the influence in society. It may form an court predicated its conclusion partly element in fixing character and influ- on the fact that the plaintiff was withence, but not necessarily. Why not out authority to support the position limit the inquiry, then, to the question, sought to be maintained. The Palmer What are the character, standing, and Case was followed in Austin v. Bacon influence of the defendant in the so- (1888) 49 Hun, 386, 3 N. Y. Supp. 587, ciety where the slander was uttered? holding evidence of the wealth of the I object to proving, as a separate item, defendant inadmissible for any purthat the defendant is a man of wealth, pose, and Enos v. Enos (1890) 58 Hun, or great wealth, or how much he is 45, 11 N. Y. Supp. 415 (subsequent worth.” The court doubted the uni- hearing in (1891) 61 Hun, 623, 17 N. versal applicability of the conclusion Y. Supp. 604), which is affirmed in reached in the quotation above, and (1892) 135 N. Y. 609, 32 N. E. 123, called attention to the fact that in the where the court also relied on the case case at bar the evidence of the defend- of Dain v. Wycoff (1852) 7 N. Y. 191,

mann

which was an action for seduction, and the reasoning of which does not seem to support the conclusion reached in the Enos Case. In Enos v. Enos evidence of the actual wealth of the defendant was admitted by the trial court for the sole purpose of showing the effect given the words uttered by the defendant, who appears to have been a man of considerable wealth, and the trial court cautioned the jury not to use the evidence for any other purpose than to determine the weight given the slanderous words in the community where uttered. In reversing the judgment of the lower court for its error in admitting the evidence, the appellate court observed: “It is difficult to see upon what principle, as a legal proposition, a man's financial ability should increase or diminish the importance of his declarations on the question of another's character," and illustrated the inapplicability of it in the case at bar, where several of the witnesses had testified that they attached no weight or importance to the defendant's utterances. "The position or standing of an individual speaking slanderous words might bear upon the weight of his utterances,” the court said, “but the amount of money or property he possesses would not naturally affect his credibility, or cause his statements to be more readily believed. If this were so, no reason is seen why a man's wealth might not be proved in all cases where he is a witness, for the purpose of increasing the force and cogency of his evidence." The court in the instant case pointed out, as did the court in the Palmer Case (N. Y.) supra, that no authority had been given to sustain the admissibility on the ground denied.

On the authority of Enos v. Enos (N. Y.) supra, a court of the New York appellate division recently reversed a judgment for the plaintiff in a slander suit, because of a remark of the trial court that evidence of the wealth of the defendant was competent to show that he was a substantial property owner in the community, the ruling being said, in a per curiam opinion, to be erroneous, either "as evidence of wealth, or for the purpose

of showing what weight should be attached to the words alleged to have been uttered by the defendant.” Ty

v. Schwartz (1924) 209 App. Div. 886, 205 N. Y. Supp. 493.

While the foregoing New York cases constitute a doubtful line of authority in themselves, in view of the circumstances under which the leading case (Palmer v. Haskins (1858) 28 Barb. (N. Y.) 90) was decided, as pointed out above, and the conflict unwittingly brought about by that decision and earlier cases (Fry v. Bennett (1855) 4 Duer (N. Y.) 247, infra, II. b, 2; Lewis v. Chapman (1855) 19 Barb. (N. Y.) 252, judgment reversed on another point in (1857) 16 N. Y. 369, infra, II. b, 2), the position taken by them was upheld by the court of appeals in Enos v. Enos (1892) 135 N. Y. 609, 32 N. E. 123, where that court declared: “The rule that the wealth of a defendant cannot be shown in aggravation is based upon the fact that the circumstance has no relation to the injury suffered by the plaintiff.” The court relies, in part, on Myers v. Malcolm (1844) 6 Hill (N. Y.) 292, 41 Am. Dec. 744, which held the circumstances irrelevant in a negligence action. The Enos Case is not fully reported.

In Young v. Kuhn (1888) 71 Tex. 645, 9 S. W. 860, the supreme court of Texas recognized the conflict of authority on the subject of consideration, and, the question being an open one in the state, adopted the rule which it regarded as “best supported by principle, uniform in its operation, of easy application, and avoiding collateral inquiries; e. g., to exclude the evidence, whether offered by the plaintiff or the defendant, and whether offered as bearing on either compensatory or punitive damages. The position taken by the court with regard to compensatory damages is that wealth alone does not give its possessor rank and influence; at least, not in all cases. As to the pecuniary circumstances of the defendant as the subject of an inquiry in determining punitive damages, the court pointed out that in imposing fines in criminal law no consideration is given the defendant's wealth, and characterized a rule mak

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