Bostetter v. Kirsch Co.

• Decision Date: 05 January 1948
• Docket Number: No. 10.,10.
• Parties: BOSTETTER v. KIRSCH CO.
• Court: Michigan Supreme Court

319 Mich. 547

30 N.W.2d 276

BOSTETTER

v.KIRSCH CO.

No. 10.

Supreme Court of Michigan.

Jan. 5, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, St. Joseph County; Theo T. Jacobs, Presiding Judge.

Action for libel by Adolph Bostetter against the Kirsch Company, a corporation. Judgment for defendant, and plaintiff appeals.

Affirmed.

Before the Entire Bench.

Cobb & Nielsen, of Battle Creek, for plaintiff and appellant.

J. Paul Wait, of Sturgis, for defendant and appellee.

CARR, Justice.

Plaintiff brought suit in the circuit court of St. Joseph county to recover damages claimed to have been sustained by him as the result of the publication by defendant of an alleged libelous article in the Sturgis Daily Journal. At the time of said publication, February 29, 1944, and for some years prior thereto, defendant was engaged in carrying on business in the city of Sturgis. During the war it manufactured certain materials for the United States government. The buildings of defendant were separated by Prospect street, which the recordindicates was a main traveled thoroughfare across the tracks of the New York Central Railroad Company. With the approval of the State and Federal authorities, it is claimed, defendant sought, in the early part of 1942, the temporary closing of Prospect street by the city commission to the end that the manufacturing operations in question might be carried on with greater security and secrecy. The action sought was taken and the street was temporarily closed. This necessitated the improvement and protection of another crossing, and defendant turned over to the city the sum of $6,000, to be used for the installation of warning signals and possibly other facilities at the so-called North Fourth street crossing of the New York Central. The devices in question were not installed, however, quite possibly because of inability to procure them at the time. The greater portion of the money advanced by defendant was used to pay crossing watchmen, apparently without any express consent on defendant's part for such use.

The record indicates that some dissatisfaction arose because of the closing of Prospect street and defendant claims that it was criticized in newspaper articles published from time to time and particularly in a certain pamphlet or handbill prepared and circulated throughout the city. It further appears that the use of the money advanced by defendant to the city was discussed, defendant taking the position through its representatives that the payment of the crossing watchmen therewith was not authorized by the agreement and that defendant was, in consequence, entitled to a return of that portion of the fund used for that purpose, approximately $5,100. In the course of the controversy defendant caused to be published the article on which plaintiff's action is based. It reads as follows:

‘To the Citizens of the City of Sturgis:

‘North Prospect Street will be

‘Reopened to the Public Wed., Mar. 1

‘Now, nobody will be further inconvenienced because of the action of the present City Commission in arbitrarily closing the North Fourth Street crossing.

‘There are some who have deliberately endeavored to make a political issue of the North Fourth Street-Prospect Street matter. Therefore, we felt that the following true facts should be brought to your attention:

‘The Kirsch Company petitioned the city to close Prospect Street for the duration and turned over to the City the sum of $6,000 for the purpose of opening the North Fourth Street crossing and to provide flashers therefor. The former City Commission, thus being assured that the opening of the North Fourth Street crossing would be without expense to the taxpayers, agreed to the closing of Prospect Street for the duration.

‘Neither the former City Commission nor the Kirsch Company had any thought of depriving anyone of a crossing between Nottawa and Lakeview Avenue.

‘Neither the former City Commission nor the Kirsch Company had any desire or intent to saddly any burden on the taxpayers. The Kirsch Company, therefore, agreed to pay for raising the tracks, and installing and providing flasher lights at North Fourth Street.

‘The Kirsch Company endeavored to provide a crossing between Nottawa and Lakeview Ave. and opposed the closing of the North Fourth Street crossing. The Kirsch Company likewise opposed the reopening of Prospect Street but only when to do so would have been in violation of the spirit and intent of its agreement with the City, and while an order of the Michigan Emergency Protective Board which prohibited it from doing so was still in effect, and while the War Department was demanding ‘all out’ precautionary measures.

‘The Kirsch Company is no longer opposed to reopening Prospect Street since the War Department in now less exacting in its demands and the Michigan Emergency Protective Defense Board has cancelled its restrictions. As a matter of record, we notified the City Commission that the War Department had lessened its demands and informed them that we would reopen Prospect Street just as soon as we could do so without violating the order of the Michigan Emergency Protective Board. The present City Commission refused to accept our proposal-‘as to form.’

‘In-so-far as the War Department and the Michigan Emergency Protective Defense Board are concerned, it is now no longer necessary to keep Prospect Street closed. It will, therefore, be reopened as contemplated in our original proposal. Furthermore, this will be done without cost to the taxpayers because The Kirsch Company now announces to all concerned that it waives its just claim to the money which has erroneously been spent to pay watchmen at the North Fourth Street Crossing even though in our opinion and in a written opinion of the city attorney, read to the City Commission on February 21st, we are legally entitled to the ‘approximately $5100’ which has been used for purposes other than for which it was paid over in trust to the city.

‘Kirsch Company’

At the time the said article was published, February 29, 1944, plaintiff was a member of the city commission of Sturgis, having been elected to that office on April 8, 1943. Proceedings for his recall had been instituted and were pending at the time of said publication. At an election held March 7, 1944, plaintiff was recalled, and at the succeeding election held April 3, 1944, he was defeated. Plaintiff alleged in his declaration that as an officer of the city he had conducted himself with integrity, that he bore a good reputation, and that defendant's act brought about his recall and his subsequent defeat for re-election. Plaintiff further claimed that the statement charged plaintiff and the other members of the city commission with embezzlement, wrongful appropriation and conversion of trust funds, and breach of trust in the performance of official duties, and that such charges were made maliciously.

Defendant filed its answer to the declaration, admitting plaintiff's official position and admitting, also, that he had properly conducted his office during the period that he held it from April 8, 1943, to March 7, 1944, and denying that defendant intended to injure plaintiff in any manner. It was further asserted that the statements in the article in question, concerning action by the city commission, were made with reference to matters occurring before plaintiff became a member of the commission. Defendant denied that it had libeled plaintiff in any way. Incorporated in the answer were certain so-called special defenses, in which defendant set forth matters that it claimed had occurred prior to the publication of the article, and which, it was alleged in substance, brought about and justified its action, the facts being alleged substantially as above set forth. Plaintiff's motion to strike the special defenses was denied, and on the trial testimony was introduced to support the defendant's claims.

During the course of the trial and at the conclusion of the opening statement of counsel for defendant, made after plaintiff had rested, counsel for plaintiff asked that the court direct the jury to return a verdict for plaintiff, leaving to the jury only the question as to the amount of the damages to which plaintiff was entitled. The motion was not argued, nor were the reasons on which it was based specifically set forth. It may be inferred that it was the claim of plaintiff that defendant, by its answer and the statement of its counsel in open court, had admitted liability. The motion was denied, the case submitted to the jury, and a verdict for defendant returned. A subsequent motion for a new trial was denied, and plaintiff has appealed.

In his statement of reasons and grounds for appeal plaintiff alleges that the trial court was in error in denying the motion to strike the special defenses for the reasons set forth therein, such reasons being in substance that defendant's allegations were recitals of evidence rather than of facts and that the matters so pleaded by defendant were irrelevant and immaterial. The receiving of evidence in support of the special defenses is also assigned as error.

An analysis of the special defenses indicates that plaintiff's criticism is not well founded. It is apparent that defendant undertook to set forth the facts that prompted it to publish the article in question, and that it did so as the basis for its claims that it did not intend to cast aspersions on any official act of the plaintiff and that the circumstances justified it in making the publicationin order that the people of the city of Sturgis might be advised as to the facts involved in the controversy. Read in conjunction with the declaration, as it must necessarily be, the answer, including the special defenses, fairly presented the issue as to whether the facts supported defendant's claim of a qualified privilege. Defendant was clearly entitled to raise such issues. Sec. 14469, Comp.Laws 1929, as amended by Act No. 279, Pub.Acts 1931,...