Rabior v. Kelley

Ostrander, J.

(after stating the facts). 1. The complaints in the criminal cases as evidence of malice. The court did not refer to them in the charge. As has been pointed out, defendant preferred a request to charge upon the subject, and he has argued at length the question of their prejudicial effect as evidence. But it also appears that the attorneys for the *113 respective parties filed in this court a stipulation to the effect that certain matter has been inadvertently omitted from the bill of exceptions, reciting the matter so omitted. From this recital it appears that during-the argument of counsel to the jury the court said:

“Gentlemen of the jury, in respect to those three complaints for the prosecutions under the liquor law, the_ three complaints that Mr. Kelley made and to which the defendant pleaded guilty, as to those complaints I hold that the fact that Mr. Kelley prosecuted those three suits is not to be considered as evidence of malice on Mr. Kelley’s part, and it won’t be necessary to refer to it again, and counsel will be governed by what I say.”

Later the court again, in substance and effect, restated this ruling.

It has been repeatedly held that the record on appeal to this court is the matter duly certified, and that’ it cannot be amended by stipulation of counsel. This rule is adhered to. But here the complaint which appellant makes to this court is fairly answered by the admission of his counsel in the stipulation filed in this court. He admits that the jury was instructed as he contends they should have been instructed, not, it is true, in the course of the general charge, but before the general charge was delivered and in the course of an argument in which the effect of the complaints as evidence of malice was being presented by counsel to the jury.

The admission of counsel may be considered as answering the argument he makes and as accounting for the refusal, or failure, of the court to charge the jury as requested — to repeat an instruction already given and at a time when it was likely to be best understood by the jury. This does not, however, precisely answer the objection that the complaint for arson, made by defendant, was in the case and had *114 been read to the jury and was offered for the purpose of proving malice. Standing alone, the fact that defendant signed and verified that complaint, under the circumstances attending the making of it, in view of the official investigation which preceded it, was not evidence of defendant’s malice. But this act of defendant does not stand alone. It is one of a series of acts, all of which, as well as all relations of the parties disclosed by the evidence, the jury had the right to consider.. It was not reversible error to refuse the request to charge as it was drawn nor to refuse to instruct that the jury should not consider the intent of defendant in the criminal prosecution for arson.

2. It was not error to refuse the answer to the question asked of plaintiff’s wife nor to refuse the offer of proof made by defendant’s counsel, especially in view of the fact that the jury.found no damages for loss of, or injury to, the plaintiff’s reputation. The testimony was offered as affecting the credibility of the witness who had been produced by plaintiff and had testified in substance that in the year 1913 she had heard defendant and her husband in a wordy quarrel in which defendant said he would put her husband out of business in a year; that after the fire her husband heard what defendant was saying about him, “didn’t act very good, never talked very much, and didn’t want to go anywhere any more; didn’t want to talk much.”

It will not be assumed because the wife of plaintiff two years before the trial regarded her husband as a drunkard and a bad man generally in his domestic relations that his feelings might not be affected by the untruthful charge that he was guilty of arson. The court offered to counsel permission to introduce evidence to meet that of the witness — to show that his feelings were not affected, as she had testified they were — and to show plaintiff’s general-reputation and *115 character. The whole subject was one to be controlled by the exercise of a sound judicial discretion, and I think it was not abused.

3. There was some testimony tending to prove that defendant had a private, personal, ill feeling towards the plaintiff, and that upon the occasion when Rutledge was at the Beach was not actuated entirely by a desire to have the law enforced. Evidence of prior dealings of the parties, their acts and statements in regard to each other, and, generally, evidence showing the state of their feelings, is admissible as tending to prove motive in making a defamatory statement. This is the general rule, and answers the objection made by defendant.

4. Rather favorable to defendant were the statements made by the court upon the subject of malice. This court has used with approval the definition:

“Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.” Zimmerman v. Whiteley, 134 Mich. 39, 45 ( 95 N. W. 989, 991 ).

See, also, Bell v. Fernald, 71 Mich. 267 ( 38 N. W. 910 ); Highway Com’rs of Eagle Township v. Ely, 54 Mich. 173 ( 19 N. W. 940 ); Long v. Tribune Printing Co., 107 Mich. 207 ( 65 N. W. 108 ).

The Century Dictionary defines malice as:

“The evil intention, either actual or implied, with - which one deliberately and without justification or excuse does a wrongful act which is injurious to others.”

In the case at bar, the court restricted the jury to the consideration of the proposition whether defend- . ant uttered the words in good faith with good reason to believe them to be true at the time he uttered them. It was not in form a definition, but was the statement of the test to be applied by the jury, and it was a statement of a fair test in the particular case.

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5. It is said the instruction complained of is substantially identical with one condemned in Jastrzembski v. Marxhausen, 120 Mich. 677, 682 ( 79 N. W. 935 ). A comparison will show that the instructions are radically different. Notice of justification, though not maintained by the evidence, is not, of itself, proof of the malice charged in the declaration. 3 Comp. Laws, § 10415 (3 Comp. Laws 1915, § 12755). This statute—

“did not take away the right of the jury to consider whether an unsustained notice of justification might not be evidence tending to show malice, when taken in connection with the other facts established.” Jastrzembski v. Marxhausen, supra.

In the instant case the court advised the jury that if they found defendant guilty of slander they must award plaintiff his actual damages, that malice of defendant might increase, augment, the actual damages recoverable, that if when he filed the notice of justification defendant had no reasonable hope or expectation of proving the truth of it they might consider that as evidence tending to show malice. Clearly this was not telling the jury that they might consider the unsustained notice as evidence of malice. And what reasonable excuse can be given for thus reiterating a charge of crime with no reasonable hope or expectation of proving the truth of the charge? Mere belief no more excuses the reiteration than it does the original uttering of the slanderous words.

6. Actual damages for injury to feelings includes, of course, and under the instructions given in this case included, damages augmented, or not augmented, as the case might be, by the malice of the slanderer. The jury was instructed to report, separately, damages given for injury to reputation and those for injury to feelings. The jury found no injury to plaintiff’s reputation, for injured feelings they assessed the damages *117 at $400, for malice they added $100. The trial court was of opinion that this was a verdict for $500 for injured feelings, and therefore added the sums reported by the jury and entered judgment accordingly. There can be no doubt that where the intention of the jury is ascertainable the court may amend the verdict, correcting manifest errors of form, and sometimes matters of substance, to make it conform to the intention of the jury. Is the intention of the jury ascertainable? In my opinion it is. The jury found the actual damages, mot augmented by malice, to be $400, and they found they should have been augmented on account of defendant’s malice in the sum of $100. Assuming there was sufficient evidence of malice, it was proper to treat the verdict as assessing plaintiff’s damages at the sum of $500.

7. I am not convinced that the verdict for damages not augmented by malice ought to have been set aside as opposed to the weight of evidence. But the evidence is insufficient to prove any actual malice of defendant in uttering the slanderous words or in pleading justification. The testimony need not be here repeated. It cannot be read without inducing the belief that defendant had cause for much more than mere .suspicion that plaintiff destroyed his property or caused it to be destroyed, and that a jury required to find the fact by a preponderance of evidence might so determine. It depended largely upon which of the witnesses the jury believed. Believing one set of witnesses, the inference justifying defendant is very strong.

The judgment will be reversed, unless plaintiff elects to remit $100, with costs to appellant. The said sum being remitted, it will be affirmed, without costs to either party.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and .Brooke, JJ., concurred. Person, J., did not sit.