Wolff v. Smith

70 N.W. 1010, 112 Mich. 359, 1897 Mich. LEXIS 967

Opinions

Hooker, J.

This is an action of slander, based on language used by the defendant which is said to have amounted to a statement that the plaintiff was a criminal. The plaintiff was a candidate for the office of treasurer of the city of Muskegon, and among the causes of action alleged is a conversation which occurred after his defeat. The alleged slander consisted in statements that the defendant had been informed that the plaintiff was a safe-cracker, and had served time in a penitentiary for safe-blowing. The defendant’s counsel was allowed to show by Mr. Niskern that about three years before the alleged slander he heard one Bassett make a statement at one time that the plaintiff had served a term in the state’s prison. One Morris testified that two or three years before he heard that the plaintiff had been a safe-cracker. There was but one excuse for offering this testimony, inasmuch as it did not go to general reputation (see Newell, Defam. 890), and that was in mitigation of damages, and it was admissible, if at all, upon the theory that it was known and believed by the defendant, and “for the purpose of showing the guo animo of the defendant.” Farr v. Rasco, 9 Mich. 356; Huson v. Dale, 19 Mich. 34; Welch v. Ware, 32 Mich. 86; Proctor v. Houghtaling, 37 Mich. 41; Maclean v. Scripps, 52 Mich. 244. r In this case, not only was there no evidence to show that this statement of Bassett, or that made to Morris, was communicated to the defendant, but it appears that what he knew came from other sources. Hence it seems clear that this testimony was not properly admitted.

The judgment is reversed, and a new trial ordered.

Long, C. J., and Montgomery, J., concurred with Hooker, J.