Postill v. Booth Newspapers, Inc.

• Decision Date: 09 November 1982
• Docket Number: 55990 and 55996,Docket Nos. 55959
• Parties: , 8 Media L. Rep. 2222 Frederick J. POSTILL and Frank Donley, Plaintiffs-Appellees, Cross-Appellants, v. BOOTH NEWSPAPERS, INC., a Michigan corporation, and William B. Treml, Carl Parsell and the Police Officers Association of Michigan, and Basil Baysinger, Defendants- Appellants, Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 511

325 N.W.2d 511

118 Mich.App. 608, 8 Media L. Rep. 2222

Frederick J. POSTILL and Frank Donley, Plaintiffs-Appellees Cross-Appellants, v. BOOTH NEWSPAPERS, INC., a Michigan corporation, and William B. Treml, Carl Parsell and the Police Officers Association of Michigan, and Basil Baysinger Defendants- Appellants Cross-Appellees.

Docket Nos. 55959, 55990 and 55996.

Court of Appeals of Michigan.

Submitted April 8, 1982.

Decided Aug. 23, 1982.

Released for Publication Nov. 9, 1982.

Neal Bush, Detroit, and Philip Green, Ann Arbor, for Frederick J. Postill and Frank Donley.

Butzel, Long, Gust, Klein & Van Zile by Richard E. Rassel and James E. Stewart, Detroit, and Burke, Rennell & Hood, Ann Arbor, for Booth Newspapers, Inc. and William B. Treml.

Garris, Garris & Garris, P.C., Ann Arbor, for Basil Baysinger.

Gregory, Van Lopik, Moore & Reakle, Brownson Murray, Detroit, of counsel, for Carl Parsell and the Police Officers Ass'n of Michigan.

Before CYNAR, P.J., and RILEY and FERGUSON, JJ.

RILEY, Judge.

This litigation arises out of an altercation which occurred during the early morning hours of July 11, 1976, at the Chelsea Fairgrounds. Those involved could not have conceived of the lengthy libel action which would have its genesis in that brawl. The trial in this action consumes over 4,000 pages of transcript, all as a result of the melee involving Frederick J. Postill, Frank Donley and Basil Baysinger. All three of these individuals were at a wedding reception in Chelsea, Michigan, on that auspicious evening. Postill, at the time, was the elected sheriff of Washtenaw County. Donley was the appointed Washtenaw County jail administrator, and Baysinger was a Washtenaw County deputy sheriff.

Many of the pertinent facts surrounding the wedding reception altercation are in dispute. The dispute which embroiled Postill, Donley and Baysinger also involved Mrs. Baysinger at various points. All of the participants seemed to have been punched, kicked or choked during the melee which started in the parking lot and continued back into the hall. Postill allegedly drew a gun and announced that he was going to "blow a hole" in Baysinger. Two uniformed Chelsea police officers who had been called to the scene finally separated everyone and restored order.

Washtenaw County Deputy Sheriff Richard Compton testified that, shortly after the incident, Postill said to Donley, "Let's go get Baysinger". Compton interpreted "get" to mean "kill". Compton contacted Baysinger and told him that Postill and Donley had threatened to kill him.

The Baysingers received medical attention and then went home. Baysinger telephoned Washtenaw County Deputy Raymond Zakrzewski, a union steward in the Police Officers Association of Michigan (hereinafter POAM), because he was afraid for his life and that of his wife. The news of the Chelsea incident spread quickly, as Zakrzewski was already aware of the event when Baysinger called, having received calls from other sheriff's department employees. In addition, Baysinger called the Ypsilanti police post, Ann Arbor News reporter Nancy Dunn and Ypsilanti Press reporter Joyce Tyson, to alert them of the situation. Baysinger's attorney telephoned Ann Arbor News reporter William Treml. Postill telephoned the city editor of the Ann Arbor News with his version of the event.

Zakrzewski telephoned Carl Parsell, the director of POAM, to inform him that Baysinger and his wife had been assaulted and were in fear of their safety. Police protection was requested for Baysinger that Sunday but Parsell did not take any action due to the lack of information available.

On Monday morning, July 12, Baysinger met with members of the local press, including William Treml, to relate his version of the incident. Baysinger told the press that he was in fear of his family's safety and had moved out of his home. On that Monday and the following Tuesday and Wednesday, the Ann Arbor News published the charges and counter-charges. These articles are not the subject of this action.

Between Monday and Wednesday, Deputy Zakrzewski was in contact with Parsell. Zakrzewski conducted an investigation and relayed to Parsell that the death threats appeared to be serious and that Postill and Donley had exhibited violent tendencies in the past and could carry out the threats. Parsell, on the basis of that information, drafted and sent the following mailgram to the director of the Michigan State Police.

"TO COL. GEORGE L. HALVERSON AN URGENT REQUEST FOR '24 HOUR ROUND THE CLOCK PROTECTION' FOR A POLICE OFFICER AND HIS WIFE FOR FEAR OF HIS LIFE.

"THIS REQUEST IS MOST URGENT AND OF A MOST SERIOUS NATURE BECAUSE WE ARE ASKING THE PROTECTION FROM (FROM) THE CHIEF LAW ENFORCEMENT OFFICER WASHTENAW COUNTY SHERIFF FREDERICK POSTILE [sic] AND THE WASHTENAW COUNTY JAIL ADMINISTRATOR FRANK DONELY [sic].

"THIS IS ALL REGARDING THE INCIDENT THAT HAPPENED IN CHELSEA MICHIGAN JULY 10 AND 11, 1976 NOW UNDER INVESTIGATION BY YOUR OFFICE OF STATE POLICE.

"WITNESSES ALL HAVE AGREED THAT THE DEPUTY, BASIL BAYSINGER OF WASHTENAW COUNTY AND HIS WIFE WHILE OFF DUTY ATTENDING A WEDDING WERE PHYSICALLY ATTACKED BY SHERIFF POSTILE [sic] AND JAIL ADMINISTRATOR DONELY [sic].

"WITNESSES HAVE MADE IT VERY CLEAR THAT THE SHERIFF AND THE JAIL ADMINISTRATOR HAVE PUBLICLY AND PRIVATELY, BOTH AT THE INCIDENT AND AFTER THE INCIDENT, STATED THAT THEY ARE GOING TO KILL DEPUTY BASIL BAYSINGER AND HIS WIFE.

"THIS SHOULD NOT BE TAKEN LIGHTLY, AS THE RECORD IS VERY CLEAR THAT THE PRESENT JAIL ADMINISTRATOR, FRANK DONELY [sic] HAS A LONG CRIMINAL RECORD INCLUDING VIOLENT ASSAULT, THE RECORD IS ALSO VERY CLEAR THAT SHERIFF POSTILE [sic] HAS BEEN INVOLVED IN SEVERAL FELONIOUS ASSAULTS OF PRIVATE CITIZENS REPORTEDLY INVOLVING PISTOL WHIPPING.

"THE REQUEST FOR PROTECTION FOR OFFICER BASIL AND HIS WIFE IS MADE TO THE STATE POLICE BECAUSE OF CONFLICTS OF INTEREST AND BECAUSE THE ISSUE IS BEING HANDLED IN WASHTENAW COUNTY AS A 'HOT POTATO'.

"I URGE COL. HALVERSON TO ACK [sic] WITH UTMOST SPEED IN PROTECTING THIS CITIZEN AND OFFICER AND HIS WIFE UNTIL THIS CASE CAN BE ADJUDICATED THROUGH THE COURTS.

"CARL PARSELL EXECUTIVE DIRECTOR POLICE OFFICERS ASSOCIATION OF MICHIGAN."

Reporter Treml received a copy of the mailgram and attempted to verify it as he was directed to do by the assistant city editor. Treml was able to confirm that the mailgram was sent and received. He was not able to independently verify all of the statements contained in the letter.

In its Thursday, July 15, edition, the Ann Arbor News reported these events in two front-page articles. One was entitled "Protection Asked: Death Threats? Deputy Fearful", and was written by William Treml. The second article was entitled "Criminal Conduct Denied by Sheriff", was written by John Barton, and gave Postill's side of the story. Treml's article contained an excerpt from Parsell's mailgram. In addition, it stated that Baysinger "said he had received reports of death threats made against him and his wife by Postill and Donley since the Chelsea incident".

Baysinger had been suspended without pay by the sheriff's department. The suspension was the basis of a union grievance filed by Zakrzewski against the department on behalf of Baysinger. Thursday afternoon, July 15, Zakrzewski told Treml of the grievance report and gave him a copy of it. The report included allegations of fits of anger by Postill and Donley. Treml questioned Zakrzewski about the report, but he responded that no specifics would be given out until the deputies received job protection. Zakrzewski had indicated that 20 to 25 deputies would be willing to come forward to verify the wrongdoings. Treml, again at the insistence of his editor, spoke with various law enforcement officials in an attempt to verify the charges. Furthermore, Treml testified that the charges had a ring of truth to them from his own knowledge of Postill's and Donley's characters.

On Friday, July 16, the Ann Arbor News published an article by Treml entitled "Deputies Ask to Testify Against Postill". The article, citing an unidentified source, mentioned assaults by Postill and Donley and "[t]he source said department and prisoner funds have been stolen, equipment misappropriated and misconduct by 'Postill favorites' overlooked".

The Ann Arbor News published an article coauthored by Treml on Saturday, July 17, which was entitled "Hear Deputies, Board Told". This article was the third and final article which was the subject of the instant case.

The attorneys for plaintiffs demanded a retraction on July 18 but no retraction was made. This libel action then is based on articles in three days of publication; and specifically seven separate paragraphs. ¹

The jury trial in this case commenced on March 31, 1980, and concluded on May 9, 1980. The jury returned a joint verdict of $200,000 against all the defendants in compensatory and exemplary damages in favor of Postill, and $100,000 in compensatory and exemplary damages in favor of Donley. The jury also awarded Postill $500,000 in punitive damages and awarded Donley $200,000 in punitive damages. The trial court struck the punitive awards as contrary to Michigan law and so grossly excessive as to shock the conscience of the court. The defendants each appeal the verdict and the plaintiffs each appeal the court's striking of the punitive awards.

We reverse the verdicts as to the defendants on the grounds that the evidence was insufficient to demonstrate actual malice. Numerous other issues raised by the parties are discussed in an effort to bring this matter to a final resolution.

I

To demonstrate liability for defamation, the following elements must be proven: (a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm ...