McCormick v. Hawkins

Brooke, J.

(after stating the facts). Before considering the errors assigned, it seems proper to consider the character of the article counted upon. The plaintiff, at the time of its publication and for some years prior thereto, occupied the position of superintendent of schools in the village of Mancelona. He held a place in his community not only of great importance, but also one which demanded of its incumbent that he be a man of high character, of unimpeachable integrity, and of correct conduct. .

The effect of the publication-we are here considering upon the reputation of a man holding such a position cannot in our opinion be questioned. Even if it does not directly charge the commission of a crime, it does impute to plaintiff gross incompetency and unfitness for the position he held. It was published of and concerning the plaintiff as superintendent of schools, and its tendency unquestionably was to bring plaintiff into hatred and contempt, to imperil the position he then held, and to prevent him from securing like employment elsewhere. Under all the authorities, this publication, if false and malicious, was actionable per se and relieved the plaintiff from the necessity of proving special damages. Tryon v. Evening News Ass’n, 89 Mich. 686 ; Oliver v. Perkins, 92 *647 Mich. 304 ( 52 N. W. 609 ); Smedley v. Soule, 125 Mich. 192 ( 84 N. W. 63 ); 18 Am. & Eng. Enc. Law (2d Ed.), pp. 909, 942, 964, and cases cited; 25 Cyc. p. 336, and cases cited.

The first reason assigned for reversal involves a consideration of what occurred at the close of the trial. After the jury had been out for a time, they returned into court for further instructions. The foreman said:

“We want to find out if we could assess the defendant to a retraction of the article as published in Exhibit 1. Also, if we had authority — would have authority to assess a penalty aside from that.”

The court thereupon proceeded to instruct the jury as to the law upon the subject of retraction. He pointed out to them that, inasmuch as the defendant had not published a retraction of the alleged libelous article, the question of malice was open for their consideration. He did not in terms answer the question of the foreman, and it is evident that the jury failed to understand his instruction, for after further deliberation they returned to court, and the following proceedings were had:

“ The Court: Your foreman will arise. Gentlemen, have you agreed upon a verdict ?

“ Foreman: Yes, your honor.

“ The Court: What is your verdict ?

“jForeman: We have agreed upon the following verdict:

“Bellaire, Mich., Oct. 13, 1910.

“We, the jury, in the case of Peter E. McCormick v. O. E. Hawkins, agree on .the following verdict: That O. E. Hawkins did publish an article in the Mancelona Herald against Mr. McCormick, with malicious intent. Further, that we, the jury, assess O. E. Hawkins to $1,500 damages to Peter F. McCormick. Also, that said° O. E. Hawkins be caused to publish a retraction of said libelous article in the Mancelona Herald for three successive issues, and it be given some conspicuous place in each issue in said paper.

“ The Court: Now that portion of the verdict referring to his publishing it would be beyond the power of this *648 court to enforce, and your verdict should be merely for damages — an amount of money. We could not make him do that. Under this form of action, all we can do is to assess the damages in money, and your verdict should be in this form: We find the defendant guilty, and assess the plaintiff’s damages at the sum of blank dollars — whatever that is, whatever you agree upon. This would be outside of the verdict. You may return to your jury room.

‘ ‘Foreman: Now, if we want to entirely vindicate this gentleman, Mr. McCormick, could we put that in the verdict in any way ?

“ The Court: No, all you can do is to put in dollars and cents. His vindication is dollars and cents.

“Foreman: It is a poor vindication.

“The Court: You may return. The requirements of the law are that it must be in dollars and cents only.”

After being out for a time, the jury returned into the courtroom, when the following proceedings were had:

“The Court: Gentlemen of the jury, have you agreed upon a verdict ?

“Foreman: We have.

“The Court: What is your verdict ?

“Foreman: We, the jury, in the case of Peter F. McCormick v. O. E. Hawkins, agree on the following ver-' diet: That O. E. Hawkins did publish an article in the Mancelona Herald against Mr. McCormick with malicious intent. Further, that we, the jury, assess O. E. Hawkins $3,000 damages to Peter F. McCormick.”

Should the first verdict have been received by the court and a judgment entered thereon ? We are of opinion that in declining to accept it, and in further directing the jury as he did, the learned trial judge acted properly. It is, we think, clear that the jury in rendering the first verdict believed that they-had the power to compel defendant to publish a retraction and that such publication would be of great value to the plaintiff. That such retraction, had it been published, would have been valuable to the plaintiff, cannot be doubted. We cannot agree with counsel for defendant in their claim that the remarks of the court at this juncture were in effect such as to invite the jury to wreak *649 vengeance upon the defendant. On the contrary, the statements of the court seem to us to be fair and judicial and to indicate no bias on the part of the court.

We are cited by defendant to the following cases upon this point: Burkle v. Ingham Circuit Judge, 42 Mich. 513 ( 4 N. W. 192 ); Rawson v. McElvaine, 49 Mich. 194 ( 13 N. W. 513 ). Neither of these cases is authority for the position taken by counsel. The first was in a statutory proceeding in ejectment, and it was held that inapplicable special findings by the jury would not prevent the entry of judgment, for possession, in plaintiff’s favor. In the second, that part of the verdict objected to by defendant was held to be surplusage, as it was no more than would follow from the verdict rendered and judgment thereon.

The case of J. Richardson & Co. v. Noble, 143 Mich. 546 ( 107 N. W. 274 ), is in point. It requires no citation of authorities to demonstrate that, when a jury returns to the courtroom and tenders an imperfect, irregular, or defective verdict, it is the duty of the court to further appropriately instruct them, and direct their retirement. Jurors are not learned in the law, and very frequently misapprehend thp scope of their powers and duties. Such misapprehensions, when they find expression in improper verdicts, should at once be corrected by the trial judge, and, if possible, a proper verdict secured.

Nor are we prepared to say that, in doubling the money amount of the original verdict in lieu of the publication of a retraction, the jury acted unreasonably or vindictively. The wrong from which the plaintiff suffered, if the publication counted upon was false and malicious, was a continuing one, and the publication of a retraction would largely tend to prevent such injury in the future.

It is next urged that the court erred in refusing to grant defendant’s motion for a new trial. Thirteen distinct reasons are assigned by defendant why a new trial should be granted. These were considered seriatim by the trial judge. One of those principally relied upon has already *650 been discussed. Such others as require attention will be noticed hereafter.

The third reason assigned for reversal is the failure of the court to instruct the jury to specify what sum is allowed for injury to feelings and what sum is allowed for other injuries. 3 Comp. Laws, § 10424, requires the damages to be so separated by the jury in any suit brought for the recovery of damages for libel or slander in this State. Defendant, however, made no request that the jury be so instructed, and in no way raised the point upon the trial. We have held that, under these circumstances, an assignment of error will not lie. McGee v. Baumgartner, 121 Mich. 287 ( 80 N. W. 21 ); Mahiat v. Codde, 106 Mich. 387 ( 64 N. W. 194 ), and cases cited.

Errors assigned upon the receiving and exclusion of evidence have been examined. They do not, in our opinion, require discussion.

Many assignments of error are based upon the refusal of the court to charge as requested and upon the charge as given. The charge, taken as a whole, is not open to criticism from the standpoint of the defendant. Many of defendant’s exceptions to it lose their force when it is considered that the published article was libelous per se, and, if untrue, entitled plaintiff to damages for injury to his feelings and reputation without proof thereof; it being presumed in law that such damages would necessarily follow the publication.

Was the verdict excessive ? We must consider the verdict of $3,000 as if it had been rendered without the incident which occurred in the rendering of the first illegal verdict. The verdict is undoubtedly a large one when-the situation of the parties is considered. Ordinarily, the jury having found the publication to be false and malicious, their determination as to the amount of damages suffered by the plaintiff should control. This record, however, is somewhat peculiar in one respect. It seems to show that, so far from injuring plaintiff in his business or profession, the publication had no harmful effect upon *651 him in that respect. Indeed, it is not certain that it did not actually benefit him in the immediate neighborhood of his residence. While this fact may not be used to mitigate damages actually suffered by plaintiff, it may serve to help to a determination of what those damages were.

After a careful consideration of the whole matter, wé have concluded that the judgment must be set aside, and a new trial ordered, unless plaintiff will remit the surd of $1,500, in which event it will stand affirmed.

Moore, C. J., and Steer®, McAlvay, Blair, Stone, and Bird, JJ., concurred with Brooke, J.