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Mr. H. Monroe Dunham for appellant.

Mr. William J. Branstrom, for appellee:

In an action of this kind, it is always proper and admissible to show the financial standing of the defendant, in order that the jury may know what influence his word would have in the community.

Botsford v. Chase, 108 Mich. 435, 66 N. W. 325; Loranger v. Loranger, 115 Mich. 686, 74 N. W. 228; Sanford v. Houghton, 184 Mich. 47, 150 N. W. 334; McCloy v. Vaughan, 185 Mich. 199, 151 N. W. 667; 25 Cyc. 508; Brown v. Barnes, 39 Mich. 214, 33 Am. Rep.

375.

The court did not err in granting plaintiff's motion to strike out certain testimony and also certain declarations contained in the opening statement of counsel for defendant.

25 Cyc. 506; Brewer v. Chase, 121 Mich. 531, 46 L.R.A. 397, 80 Am. St. Rep. 527, 80 N. W. 575; Schattler v. Daily Herald Co. 162 Mich. 127, 127 N. W. 42; Gripman v. Kitchel, 173 Mich. 245, 138 N. W. 1041; Flynn v. Boglarsky, 178 Mich. 165, 144 N. W. 516; Newell, Slander & Libel, 2d ed. p. 350; Brewer v. Chase, 121 Mich. 529, 46 L.R.A. 397, 80 Am. St. Rep. 527, 80 N. W. 575; Kenney v. McLaughlin, 5 Gray, 3, 66 Am. Dec. 345; Clair v. Battle Creek Journal Co. 168 Mich. 473, 134 N. W. 443; People v. Talbot, 196 Mich. 528, 162 N. W. 1017; Whittemore v. Weiss, 33 Mich. 348; Evening News Asso. v. Tryon, 42 Mich. 549, 36 Am. Rep. 450, 4 N. W. 267; Bell v. Fernald, 71 Mich. 267, 38 N. W. 910; Owen v. Dewey, 107 Mich. 67, 65 N. W. 8; Smedley v. Soule, 125 Mich. 192, 84 N. W. 63; Zanley v. Hyde, 208 Mich. 96, 175 N. W. 261.

here only as bearing on the weight and credence that the community, in hearing these things, might give to his utterances."

Counsel for defendant claims it was error to permit such testimony of reputed wealth. It would not have been competent to show defendant's actual wealth. McCloy v. Vaughan, 185 Mich. Evidence189, 151 N. W. 667. wealth of deIt was proper to fendant in show his reputed fi- slander suit. nancial standing for the purpose Brown v. Barnes, 39 Mich. 211, 33 stated in the instruction. Ibid.; Am. Rep. 375; Botsford v. Chase, 108 Mich. 432, 66 N. W. 325; Sanford v. Houghton, 184 Mich. 44, 150 N. W. 334.

Under the plea of the general issue defendant gave notice that one Preston, of the township of Dayton, Newaygo county, came to defendant in the interest and behalf of the Odd Fellows Lodge, of which organization plaintiff and defendant were members, and asked him in confidence about the matter in suit, and he informed him of what he had heard.

At the trial witnesses were permitted to testify to their membership in the order of Odd Fellows, and that plaintiff had made some progress in joining the order. Most of such testimony -relations of was given to show parties to secret why the witnesses visited and talked with defendant about the alleged slanderous utterances. We are not persuaded of any

Wiest, Ch. J., delivered the opin- harmful error in this. ion of the court:

This is an action of slander. It is claimed defendant charged plaintiff with the crime of incest with his sister. The specific language is not necessary to decision, and is, therefore, omitted.

At the trial testimony was permitted to be given of the general reputation of the wealth of defendant. The court instructed the jury that "the wealth or property possessed by this defendant is permitted in

order.

Complaint is made because a witness was asked whether the mother of plaintiff was a "sister Rebecca." The The question was not answered. Counsel for defendant offered to show common report of plaintiff's improper relations with his sister, by statements claimed to have been made by the sister to schoolmates four or five years before the trial, and the spread of the story; that it was considered by him and others as idle gossip, and as such repeated by

(222 Mich. 278, 192 N. W. 595.)

him without malice. The court held such defense inadmissible, and that the slanderous statements made by defendant were actionable per se, and limited defendant to justification of his utterances. Thereupon defendant rested his case without any testimony.

charge

Defendant's requests to also bring up the question of the right of defendant to show that he repeated common rumor. Was defendant entitled to show, in mitigation of damages and to rebut malice, that he was not the originator of the slander, but only repeated longstanding common rumor or gossip? It is no defense, and cannot mitigate damages, to show that others uttered the same slander, or that it was common talk. It may be shown in mitigation of damages, however, that the common talk came to the knowledge of

Damages-slander-common talk as mitigation.

Libel-repetition

defendant before he uttered the slander, and he believed it, and did no more than repeat what he had heard. It cannot, however, constitute justification; it may mitigate damages, it may reof rumor as but the legal presumption attending a charge actionable per se, but it cannot affect malice in fact. We find, in counsel's statement to the jury of what he expected to prove, the following: "We will show you that as far back as four or five years

justification.

ago that Mr. Mansfield had heard it, the same as all the other neighbors in that vicinity."

It is not quite clear, but we assume that this related to what, it is claimed, had been stated by Mike Donahue, and the incident of plaintiff's father seeking explanation from Mr. Donahue, but, be that as it may, defendant's claim was that he only repeated the Donahue statement, and that such statement was common rumor of long standing, to his knowledge. If the alleged slan

derous matter was current in that

community before the utterance thereof by defendant, and had come to his knowledge, and he believed the same true, and he only repeated the same as gossip or rumor, then he had a right to make such a showing in mitigation of damages, but for no Mich. 353, 80 Am. Dec. 88; Wolff v. other purpose. Farr v. Rasco, 9 Smith, 112 Mich. 359, 70 N. W. 1010; Brewer v. Chase, 121 Mich. 526, 46 L.R.A. 397, 80 Am. St. Rep. 527, 80 N. W. 575.

Defendant should have been permitted to show, in mitigation of damages and to rebut the presumption of malice, what he had heard by way of common rumor before he uttered the slander, and that, if such be the case, he believed the charge he so made to be true.

For the error pointed out the judgment is reversed, and a new trial granted, with costs to defendant.

ANNOTATION.

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

der.

I. View that pecuniary circumstances of II. b-continued.

defendant are irrelevant, 4.

II. View that pecuniary circumstances are

relevant:

a. In general, 7.

b. On behalf of plaintiff:

1. Generally, 7.

2. Exemplary, punitive, or vindictive damages; actual wealth, 8.

3. Compensatory damages; reputed circumstances, 12.

c. On behalf of defendant:

1. Generally, 17.

2. In mitigation of exemplary,

punitive, or vindictive damages, 17.

II. c-continued.

3. As a measure of compensatory damages, 18.

4. Defendant's right as dependent on plaintiff opening the inquiry, 19.

1. 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

II. continued.

d. Where more than one defendant, 20.

e. Where a corporation is defendant, 21.

f. Miscellaneous matters, 22.

(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 reason given by the court for its decision is that if proof of wealth is admissible to aggravate damages, common justice would require that a converse rule should apply where the defendant is poverty stricken, and points out the reason which makes the converse proposition unsound; e. g., allowing poor people partial immunity for vindictive torts. The reasoning of the court on this point is approved in Young v. Kuhn (1888) 71 Tex. 645, 9 S. W. 860, supra. Further attention was called to the complications liable to arise were such evidence to be admitted, such as an offer of proof by the defendant that, though his wealth is large, his influence is small.

Donaldson v. Roberson (1916) 15 Ala. App. 354, 73 So. 223, held evidence of defendant's financial standing inadmissible even where punitive damages are recoverable.

In Palmer v. Haskins (1858) 28 Barb. (N. Y.) 90, Marvin, J., in considering the wealth of a defendant in a defamatory action as it bears on the injury sustained as related to the measurement of compensatory damages, observed: "It may be admitted that the slander of a man of high character and influence would be more destructive to the character of the party slandered than the slander of one without character and influence. Hence, the character and standing in society of the defendant have long been admitted in evidence in this class of cases. But I am not satisfied that wealth is a necessary ingredient to constitute character, standing, and influence in society. It may form an element in fixing character and influence, but not necessarily. Why not limit the inquiry, then, to the question, What are the character, standing, and influence of the defendant in the society where the slander was uttered? I object to proving, as a separate item, that the defendant is a man of wealth, or great wealth, or how much he is worth." The court doubted the universal applicability of the conclusion. reached in the quotation above, and called attention to the fact that in the case at bar the evidence of the defend

ant's wealth was not offered to show his influence, the inference being that it was given with a view to punitive. damages. "Establish it as a rule," the court said, "that the plaintiff may, in this action, prove the wealth of the defendant as an independent item of evidence in the cause, and such evidence will be used for quite a different purpose than simply to ascertain how much injury the plaintiff actually sustained in consequence of the character, standing, and influence of the defendant, and juries will be invited and eloquently urged to punish the defendant by a large verdict, which he can so easily pay." It may be noted that no reference is made in the opinion to the case of Lewis v. Chapman (N. Y.) infra, II. b, 3, in which a New York court of equal dignity reached the opposite conclusion, and it is possible that that case would have been followed, had the opinion been before the court, inasmuch as the court took pains to distinguish a number of cases from New York and other states. In regard to the wealth of the defendant as it bears on punitive damages, the court in the Palmer Case said that a small verdict may in some cases sufficiently punish a wealthy man, as "men of wealth are quite apt to value and appreciate property as highly as those in moderate means." Whether the size of the verdict is determinative of punishment is said to be speculative, and "it will be dangerous to instruct a jury that they may measure the verdict by the ability to pay." The reasoning in the opinion on this point does not seem well seasoned, and the court predicated its conclusion partly on the fact that the plaintiff was without authority to support the position sought to be maintained. The Palmer Case was followed in Austin v. Bacon (1888) 49 Hun, 386, 3 N. Y. Supp. 587, holding evidence of the wealth of the defendant inadmissible for any purpose, and Enos v. Enos (1890) 58 Hun, 45, 11 N. Y. Supp. 415 (subsequent hearing 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 also relied on the case of Dain v. Wycoff (1852) 7 N. Y. 191,

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." Tymann 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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