Bufalino v. Maxon Bros., Inc., 33

• Decision Date: 01 October 1962
• Docket Number: No. 33,33
• Parties: William E. BUFALINO, Plaintiff and Appellant, v. MAXON BROTHERS, INC., a Michigan corportation, Paul Maxon, Richard L. Maxon, Bernard Whitley, Axel P. Holt, Grosse Pointe Property Owners Association, a Michigan corporation, Grosse Pointe Brokers Association, a Michigan corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 150

117 N.W.2d 150

368 Mich. 140

William E. BUFALINO, Plaintiff and Appellant, v. MAXON BROTHERS, INC., a Michigan corportation, Paul Maxon, Richard L. Maxon, Bernard Whitley, Axel P. Holt, Grosse

Pointe Property Owners Association, a Michigan corporation,

Grosse Pointe Brokers Association, a Michigan corporation,

Defendants and Appellees.

No. 33.

Supreme Court of Michigan.

Oct. 1, 1962.

Burns & Mantho, Detroit, for plaintiff and appellant.

William E. Bufalino, in pro. per.

Miller, Canfield, Paddock & Stone, Detroit, for defendants-appellees Maxon Brothers, Inc., Paul Maxon, Richard L. Maxon, Bernard Whitley and Axel P. Holt.

Orville F. Sherwood and James C. Worth, Detroit, for defendant-appellee, Grosse Pointe Property Owners Association.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, for defendant and appellee, Grosse Pointe Brokers Association.

Before the Entire Bench, except ADAMS, J.

KELLY, Justice.

February 5, 1960, plaintiff filed his declaration naming 7 defendants, claiming they were engaged in a conspiracy in the real estate business in Grosse Pointed and that by uttering and publishing defamatory statements 'the plaintiff was injured in his reputation in the sum of $1,000,000.'

Defendant Grossee Pointe Brokers Association (hereinafter referred to as 'brokers') is a nonprofit, nonstock corporation organized by brokers in the area, with its membership limited to licensed real estate brokers.

Defendant Grosse Pointe Property Owners Association (hereinafter referred to as 'property owners') is a nonprofits, membership Michigan corporation, organized in 1951 for the purpose of maintaining property values in Grosse Pointe.

Defendant Maxon Brothers, Inc., is a Michigan corporation, duly authorized and licensed to do business and doing business as real estate brokers in the State of Michigan; more particularly it does business in the Grosse Pointe area in and about Wayne county, Michigan.

Defendants Whitely, Holt, Paul Maxon and Richard L. Maxon are employees of Maxon Brothers, Inc.

October 12, 1959, plaintiff contacted Maxon Brothers regarding the purchase of Grosse Pointe property located at 805 Essex. Maxon Brothers requested defendant property owners for a report on plaintiff, and defendant property owners followed its past practice and submitted plaintiff's name to private detective, Earl H. Grady.

On a form he had used in making previous investigations for defendant property owners, Grady filled in the form in longhand, and plaintiff contends the following constituted libelous language:

'SECTION B. GENERAL STANDING

'* * *

'(2) Have his dealings been considered reputable? No (See narrative)

'(3) How has his family been thought of in previous neighborhoods?

'Highly? __ Medium? __ Of bad repute? x

'* * *

'SECTION D. NARRATIVE:

'* * *

'Operator found most of his neighbors to be obviously afraid to give even the simplest information about the subject. This apparently is because of a reputation for violent direct action when he or his associates are opposed in any manner.'

Detective Grady forwarded his written report to a secretarial service which did work for defendant property owners, where it was typed by clerical stenographer Eleanor Friedel, and copies were mailed to the executive secretary of property owners and to a screening committee for the purpose of evaluating the report.

The 3 members of the screening committee were not appointed for the purpose of evaluating the Bufalino report, as they were members of a revolving standing committee under an arrangement between defendant property owners and defendant brokers at the time plaintiff made his inquiry in regard to purchasing. The membership of this committee changed every 3 months by taking 1 real estate broker off the committee and adding another.

Each of the 3 members of this committee made his own separate evaluation and mailed same to Eleanor Friedel and when she noted the 3 scoring grades, namely 52, 41 and 39, constituted a grade showing the plaintiff had 'not passed,' she, following the practice of the past, prepared a 3 X 5 inch card which contained the following:

'BUFALINO, WILLIAM E.

'Wife: Antoinette Bufalino

'Res.: 12353 Wilshire

Detroit

'Bus.: AF of L-CIO Teamsters

'Local #985

2741 Trumbull

Detroit, Michigan

'Inv.: October 16, 1959.'

She mailed this card to a list on file of real estate firms, a list which had previously been submitted by defendant brokers and, also, to defendant owners' executive secretary, and on or about October 16, 1959, Maxon Brothers were advised that plaintiff had not passed the reference test.

January 5, 1960, Robert Dargel, a builder, contacted Maxon Brothers' employee, Whitley, concerning the purchase of property in the Effton subdivision, and the following day Whitley brought to Dargel's home a plat, price list, application form, and a set of building restrictions.

Plaintiff's wife obviously obtained the application, as she signed same and brought it to Whitley at the Maxon office on January 9, 1960. January 10, 1960, Paul Maxon called Mr. Semmes (agent for Effton Realty Corporation) and told him of plaintiff's application and Semmes replied: "He is the man that has been before the McClellan Committee and we don't want him in our property."

January 11, 1960, Maxon informed Mrs. Bufalino that Mr. Semmes had refused to sell and he also made that fact known to plaintiff on the same day.

January 16, 1961, a jury was waived and trial commenced before the Hon. Horace W. Gilmore, circuit judge of Wayne county. At the close of plaintiff's proofs, February 7, 1961, the court granted defendants' motion to dismiss defendants Holt, Paul Maxon, Richard L. Maxon, and Grosse Pointe Brokers Association, but reserved decision as to defendants Whitley, Grosse Pointe Property Owners Association and Maxon Brothers, Inc.

February 16, 1961, the trial concluded and the court found for defendants Whitley, Grosse Pointe Property Owners Association and Maxon Brothers, Inc., and against plaintiff. Judgment was entered accordingly and the cause dismissed as to remaining defendants.

Plaintiff and defendants differ as to what type or kind of case plaintiff brings to this Court on appeal. Plaintiff in his brief to this Court states: 'This is a case of libelous conspiracy. This is a defamation action in tort for libel and slander brought by the plaintiff, an attorney and counsellor-at-law, against the defendants, on the 6th day of February, 1960. It is a damage suit for a conspiracy which kept the plaintiff out of a common market.'

Defendant brokers maintain to this Court that this is not so, and state:

'Plaintiff-appellant brought this action February 5, 1960, to recover damages for alleged libel and slander. This is not 'a case of libelous conspiracy' nor is it a damage suit for a 'conspiracy which kept the plaintiff out of a common market' as claimed in appellant's statement of facts.'

Defendant property owners join in disputing plaintiff's contention, by their statement: 'As pertains to this appellee, this is a defamation action in tort for libel.'

Defendant Maxon Brothers, Inc., Paul Maxon, Richard L. Maxon, Whitley and Holt, emphasize the disagreement by commencing their counter-statements of facts as follows: 'Contrary to the first assertion of plaintiff-appellant in his brief, this is not a case of conspiracy to libel; this is a simple action for libel and slander.'

The pretrial statement sets forth plaintiff's claim:

'This is a matter arising out of certain alleged slanderous statements and libelous matters issued and published by the defendans herein, defaming the character of the plaintiff and causing him damages, and for damages arising out of other personal damages resulting from the said language or statements.

'It is the contention of the plaintiff William E. Bufalino, that he has been defamed by slanderous statements uttered, and that libelous statements regarding him have been published. And, as a result of such libelous and slanderous statements, he has been injured in his community; that his reputation in the community in which he lives has been affected; that he has been held out to public hate, ridicule and scorn; that, in addition, as a direct result of such libelous and slanderous statements, he has been greatly injured in his profession, occupation and offices.'

In rendering an opinion on the motions to dismiss (February 7, 1961), the court stated:

'All right, gentlemen, on the motions to dismiss, the case here obviously arises out of the screening process in the Grosse Pointe community in which the claim of libel is made because of a screening sheet which has been received into evidence in 2 or 3 different forms, both with the marginal notations and without the marginal notations where certain comments were made with reference to the plaintiff, Mr. Bufalino, and upon the basis of an 'inv' card mailed to all members of the Brokers Assocation and 3 additional brokers, the claim being that the 'inv' card libeled Mr. Bufalino because it had a special meaning to the brokers receiving it, and that publication was to the brokers, the claim being that the screening report libeled Mr. Bufalino in so far as it was published to the 3 brokers who graded it, to the people in the office and also there is a claim of publication by negligence in allowing Eugene Boylan to take the sheet and distribute it and publish it further.

'The claim of slander in the case is based upon the statement of Mr. Whitley to Mr. Dargel and it is conceded by the defendants Maxon Brothers, Inc., that the doctrine of respondeat superior applies with reference to them with reference to any statement made by Whitley to Dargel in the course of his employment.

'With reference to the libel first, there is a clear showing made on this record of screening by the Property Owners Association to keep out of Owners Association to keep out of deemed undesirable. There is no claim made in ...