Begole v. Ferguson

• Decision Date: 06 October 1941
• Docket Number: No. 34.,34.
• Citation: 299 Mich. 416,300 N.W. 146
• Parties: BEGOLE et ux. v. FERGUSON.
• Court: Michigan Supreme Court

299 Mich. 416

300 N.W. 146

BEGOLE et ux.

v.FERGUSON.

No. 34.

Supreme Court of Michigan.

Oct. 6, 1941.

Action for libel by Franklin S. Begole and Lucinda Begole, his wife, against Edgar E. Ferguson, commonly called E. E. Ferguson, wherein Kenneth E. Ferguson, having been appointed the guardian of the defendant, was substituted as a party defendant. From a judgment entered on a directed verdict for defendant, plaintiffs appeal, and the substituted defendant moves to dismiss the appeal.

Motion granted and cause remanded for entry of order dismissing action.

Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Argued before the Entire Bench.

Walter M. Nelson, of Detroit, for appellants.

Burke & Burke, of Ann Arbor, for appellee.

BUSHNELL, Justice.

Plaintiffs Franklin S. Begole and Lucinda Begole, his wife, appeal from a judgment entered in favor, of defendant Edgar E. Ferguson upon a directed verdict. Begole, who had been a farmer near Ypsilanti, moved into the city in 1922 to conduct a creamery business with his brother. Since 1924, he has owned and operated a general store near the outskirts of that city, where he also sells gasoline and motor oils at retail. For some years he and his wife have operated a trailer camp at the rear of their premises.

Defendant Ferguson, who has been active in the business affairs of the city, is interested in lands north of plaintiffs' property, which were vacant and unimproved until about two and one-half years previous to this action. The Ferguson property has since been platted as Woods Subdivision and now has a few residential homes located thereon.

In 1925 the common council of the city of Ypsilanti enacted a zoning ordinance, and in 1939 enacted an ordinance which required operators of trailer camps to secure a license. This latter ordinance provides that no application for a license shall be accepted by the city clerk ‘unless it is accompanied by a petition signed by sixty per cent of the property owners owning property within 500 feet of the proposed site of the House Trailer Camp.’ Subsequent to the enactment of the ordinance, plaintiffs sought to secure the written approval of adjoining property owners for their license application. They charge that, while they were so engaged, defendant, on or about April 22, 1939, ‘wrongfully, maliciously, falsely and unjustly did compose and publish a certain false, scandalous, malicious and defamatory libel of and concerning these plaintiffs, and of and concerning them in their said businesses and the ownership by them of said property’ consisting of 5000 copies each of three circulars prepared and circulated throughout the city of Ypsilanti either by defendant or under his instructions. These three circulars were fastened together and distributed together. They may be identified as ‘A,’ ‘B’ and ‘C’. Circular ‘A’ discussed the subdivision owned by Ferguson and the details of his expenditures of money therein. This circular stated: ‘I think no further information is necessary, except to say that a trailer camp is being built adjacent to the subdivision and against the wishes of many of the property owners.’ Circular ‘B,’ entitled, ‘Thinking Aloud,’ stated defendant's conception of what a trailer camp should be. Circular ‘C’ was entitled, ‘Is it Fair-To Whom?’ It put the question: ‘Is it fair to the residents of Woods Subdivision to allow a trailer camp at the Boundary line?’ This circular then gave the names of those who had built homes at the cost of $10,000 to $20,000 in Woods Subdivision, and stated: ‘This is the question I am asking. I am also very respectfully asking Mrs. Begole if she really believes she should have under the eaves of these houses a trailer camp? Even though it may be tidied up some it is a detriment to the property owners in the vicinity.’

After city an instance where a prospective purchaser refused to buy a home in Woods Subdivision, this circular concluded with:

‘This is a practical question to ask. Do we want an environment which will draw such families to Ypsilanti? Or do we want an environment which will keep them away? The question is up to the citizens of Ypsilanti.

‘A very simple question, but one difficult to answer because greed may enter into the picture and greed is a disease, not of the body-but of the mind.’

Circular ‘C’ was signed ‘E. E. Ferguson.’ Circular ‘A’ was signed ‘E. E. Ferguson, Owner and Proprietor.’ Circular ‘B’ concluded with this language: ‘To anyone interested in moving their trailer upon these premises, please see Mr. Garner Williams, general manager of the Ferguson Farm Industries. 1025 Huron Road, Telephone 1459, Ypsilanti, Michigan.’

Plaintiffs charge that these circulars containing the imputation of a diseased mind were defamatory and libelous.

On the day upon which the trial commenced, July 5, 1940, defendant's son, Kenneth E. Ferguson, was substituted as a party defendant, having been appointed the guardian of defendant E. E. Ferguson who was adjudged a mental incompetent on May 10, 1940. This order of substitution and a conditional order denying a continuance were entered under the following circumstances: A continuance had been granted in the case on May 7th because of defendant's inability to be in court. No formal order, however, was entered at the time but, on July 5th, while counsel for plaintiffs was seated at the counsel table, defenda...