Austin v. Hyndman

Grant, C. J.

(after stating the facts). 1. The court instructed the jury that Mrs. Sweezey was the owner of the life estate, that it was her duty to pay the taxes, that the land was properly assessed to her, and that the publication overstepped the bounds of privilege which the occasion gives, in that it charged the plaintiff with having unlawfully, knowingly, and with an improper or corrupt motive, made the assessment of the property to her, instead of to the estate of William Sweezey. The duty of the owner of the life estate to pay the taxes is conceded. • The learned counsel for the defendant claim that, under the will, Mrs. Sweezey was not the owner of the life estate. The language of the will is as follows:

‘ ‘ I give and bequeath to my beloved wife, Eliza, if she survives me, $1,500; and I also direct that my said wife, during her natural life, shall have the possession of, and the exclusive use and control and management of, the following real estate [describing it], and all of the household goods, all of which she may receive in lieu of her right of dower, should'she so elect.”

By this language she was given the exclusive use and control of the property during her life. It clearly created a life estate, and the instruction was correct.

2. It is next urged that the court erred in its instruction upon the subject of malice. The instruction complained of is as follows:

*619 “In considering the question of damages, gentlemen, it is necessary, to enable you to- make an intelligent disposition of it, to understand what is meant by the term ‘malice,’ which you have heard used so frequently in the course of the trial. The word ‘ malice,’ when used in relation to the action of libel, means no more than ‘willfulness.’ A willful injury without just reason is properly called ‘ malicious.’ Malice is said to be express or implied. So far as any explanation of that distinction is necessea-y for our purposes here, I instruct you that implied malice is the kind of malice which the law presumes actuated the defendant, Dr. Hyndman, in publishing the libel in question ; it is what the law assumes influenced him in making the publication; while express malice is such further or additional or actual malevolent design or purpose as may have been entertained by the doctor in making the publication in question. I instruct you, gentlemen, without any further evidence, that the mere fact of the publication itself — -those parts of the publication which have not been justified, and which I have instructed you are libelous— should be considered by you as a voluntary act by the doctor, and to have proceeded from a malicious motive. The willful publication by Dr. Hyndman of this libelous statement necessarily involved a design on his part to produce such injury upon the plaintiff as is a necessary consequence of the libel, and the doctor would be liable, without other proof than the publication itself, for all the necessary damages which resulted to the plaintiff from the publication of all those parts of the publication which have not been proven to be true.”

The argument against the instruction is that it does not make the distinction between that malice which is actual willfulness and that which in law makes the words actionable ; or, as counsel, state it, ‘ ‘ in other words, the case is tried precisely the same as if no privileged occasion existed.” The court had previously instructed the jury that the occasion was privileged, but that the publication, if untrue, was not. We think the distinction sought to be made is rather technical. If the charge made was untrue? it was libelous per se, and defendant w<as liable for all the necessary damages resulting. The rules governing criticisms upon the character of candidates for office have *620 been frequently discussed by this court, and are familiar to the profession. Bailey v. Kalamazoo Publishing Co., 40 Mich. 257 ; Belknap v. Ball, 83 Mich. 583 (11 L. R. A. 72, 21 Am. St. Rep. 622 ); Dunneback v. Tribune Printing Co., 108 Mich. 75 . One who attacks the character of a candidate for office must be as careful to ascertain the truth of the facts charged as in any other case of libel. The damage resulting from false charges would be more injurious to the candidate for public office than if made against the private individual. The court carefully guarded the rights of the defendant, in instructing the jury what facts they should consider as bearing upon the question of malice. We find no error in this instruction.

3. Counsel for defendant requested the court to instruct the jury:

“ (1) Damages in this case are reduced to the minimum if the libel results from an honest mistake, made in an honest endeavor to enlighten the public.

“ (2) If the jury find that the defendant acted in good faith and with proper precaution, and had good reason to believe that the statements were true, they should award nominal damages merely, if any.”

The second request does not accurately state the law. The word “minimum,” used in some of the decisions under similar circumstances, does not mean nominal damages. It means the minimum of damages which the plaintiff has sustained. In such case there could be no damages allowed for malice. Where the charge is untrue, the defendant is liable for the actual damages which result, regardless of malice. McGuire v. Vaughan, 106 Mich. 280, 287 . We think it extremely doubtful if the first request is applicable to the facts in this case; but, however this may be, the court, at the request of defendant, instructed the jury that plaintiff could recover no special damages, and that if they found that defendant was acting upon the advice of the prosecuting attorney as to the law in the case, and that he believed that this advice was correct, they should consider that fact in determining the *621 extent of tbe defendant’s good faith or malice in making the publication. The small verdict shows that the jury-must have taken these things into consideration; for, if any substantial damage was suffered on account of injured feelings, it is difficult to see, under this record, how the verdict could have heen less.

Judgment affirmed.

The other Justices concurred.