Durant v. Stahlin

• Decision Date: 07 June 1965
• Docket Number: Nos. 31-33,s. 31-33
• Parties: Richard DURANT, Plaintiff and Appellant, v. John H. STAHLIN and Charles A. Ferry et al., jointly and severally, Defendants, Richard C. Van Dusen, Arthur G. Elliott, Jr., and George Romney, jointly and severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 392

135 N.W.2d 392

375 Mich. 628

Richard DURANT, Plaintiff and Appellant, v. John H. STAHLIN and Charles A. Ferry et al., jointly and severally, Defendants Richard C. Van Dusen, Arthur G. Elliott, Jr., and George Romney, jointly and severally, Defendants-Appellees.

Nos. 31-33.

Supreme Court of Michigan.

June 7, 1965.

Davidow & Davidow, Detroit, for plaintiff-appellant.

Dickinson, Wright, McKean & Cudlip, Detroit, for defendants-appellees Van Dusen and Elliott; Fred W. Freeman, George B. Martin, Detroit, on the brief.

Cross, Wrock, Miller, Vieson & Kelley, Detroit (Bethel B. Kelley, W. Robert Chandler, Thomas G. Sawyer and Newman T. Guthrie, Detroit, of counsel), for defendant George Romney.

Before the Entire Bench, except KELLY and BLACK, JJ.

ADAMS, Justice.

This appeal from orders of the trial court granting motions for summary judgment as to defendants Richard C. Van Dusen, Arthur G. Elliott, Jr., and George Romney, is another aspect of matters dealt with in Durant v. Stahlin, 374 Mich. 82, 130 N.W.2d 910, and Zimmerman v. Stahlin, 374 Mich. 93, 130 N.W.2d 915.

Appellant began suit on May 21, 1962. Van Dusen, Elliott and Romney were joined as defendants on April 19, 1963. Appellant has deposed twelve of the defendants or other possible witnesses. The depositions contain 1,250 pages of testimony.

The depositions and pleadings establish that there has been a long-standing political conflict between appellant Richard Durant and other Republican leaders in the 14th congressional district. The so-called liberal group, made up of defendants Robert Waldron, Dean Charles King, Wilbur Brucker, Sr., Paul Bagwell and others, opposed the leadership of appellant Durant and sought to prevent his reelection as a precinct delegate to the 14th congressional district and his control of that district. These efforts are freely admitted and testified to abundantly.

It is plaintiff's theory of his case that out of these activities there emerged the conspiracy and the libel of which he complains. It is the separation of what plaintiff conceives to be these inextricably mixed political activities and the claimed libel and slander that poses plaintiff's dilemma.

Hundreds of pages of testimony as to political conflict do not make a cause of action. As Judge Horace M. Gilmore, before whom some of the depositions were taken, observed:

'When you are in a political battle you have public attacks all the time.'

and

'You are establishing so far by this testimony the fact that Mr. Bagwell participated in a series of meetings among political leaders whose purpose was to find new leadership, and certainly to my knowledge there is nothing illegal about that.'

The right to freedom of expression, especially in the area of public affairs, has been dwelt upon recently by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and by this Court in Robbins v. Evening News Association, 373 Mich. 589, 130 N.W.2d 404. It is scarcely necessary to reiterate that freedom, especially as to political action, is an essential American heritage. Libel and conspiracy, on the other hand, are tortious, even sometimes criminal activities. One who has suffered from them should not go remediless.

Plaintiff developed proofs to show that a letter with enclosure over the signature of John H. Stahlin was published on May 10, 1962, charging Richard Durant with being the leader of extremist groups that:

'* * * are, through bribery, intimidation, misrepresentation, and threats of physical violence, attempting to seize control of the Republican Party Organization in Wayne County * * *.'

The proofs show: The letter and enclosure, designated as Exhibit A, was signed by Senator John H. Stahlin and published by him; the document was prepared by Charles A. Ferry, who was employed by Stahlin as his publicity director; Paul Bagwell and possibly one or two of the other defendants with whom we are not here concerned had direct contacts with defendants Stahlin and Ferry at the time of preparation and publication of the document.

In support of their motions for summary judgment defendants Van Dusen, Elliott and Romney, filed affidavits in which they specifically and categorically denied any participation in the preparation or publication of Exhibit A; any discussion of the compilation, formulation, preparation, publication or distribution of Exhibit A with the alleged co-conspirators; any agreement to so conspire, or that they aided, abetted, or encouraged any of the other defendants; and finally, they deny any knowledge of the existence of Exhibit A or that it was being compiled, formulated, prepared, published or distributed prior to its publication in newspapers of the city of Detroit.

The defendants further advised plaintiff in their affidavits that they would appear before the circuit judge at the time set for hearing of the motions for summary judgment for the purpose of permitting cross-examination as to any matters relating to the facts set forth in their affidavits. Defendants Van Dusen and Elliott had been deposed by the plaintiff prior to the filing of the motions for summary judgment. Their testimony on deposition consisted of a complete denial of participation in the matters charged in plaintiff's bill of complaint.

Durant countered the motions for summary judgment with affidavits in which he set up the admission of defendant Van Dusen that he actively endeavored to supplant plaintiff with other Republican leadership in the 14th congressional district of Michigan, and reiterated on information and belief 'that the use of libelous statements attacking plaintiff, and particularly libelous statement Exhibit A, was common knowledge among the defendants and co-conspirators.'

On October 4, 1963, the date set for hearing on the motions for summary judgment, defendants Van Dusen, Elliott and Romney, presented themselves for cross-examination. Plaintiff's counsel announced to the court that he had lost his voice and could hardly talk. He asked for a continuance, stating that he would like to cross-examine the defendants but upon some other occasion. The proceedings continue with page upon page of discussion between court and counsel, in which counsel for plaintiff reiterated his inability to cross-examine the defendants at that time. The hearing was finally concluded. The court declined to grant the plaintiff a continuance and granted the motions for summary judgment on the basis that:

'* * * there is no genuine issue as to any material fact.'

We agree with the ruling of the trial judge and further hold that there was no abuse of discretion in refusing a continuance. The basic rule in summary judgment matters is simple. Its application is often difficult. When properly challenged, plaintiff must establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.

In a summary judgment proceeding, an affidavit is employed as a voluntary statement made ex parte. The function of affidavits by the defendant is to establish affirmatively under oath that there is no basis in fact to support plaintiff's claims. In the case of plaintiff's counter affidavits, they should establish that there is some evidence as to material facts upon which to proceed to trial. There is no question of the relative weight to be given the evidence. The party opposing the motion is given the benefit of all doubt. If he produces some evidence, the motion is denied. In this case the affiants were available for cross-examination by their own choosing.

Using the language of GCR 117.3, the question is whether the affidavits 'together with the pleadings, depositions, admissions, and documentary evidence then filed in the action' present a genuine issue as to any material fact.

There has been presented by plaintiff not one single piece of admissible evidence by deposition, affidavit or otherwise, of plaintiff or of anyone else from which it could be found that the defendants participated in any way in the preparation or publication of Exhibit A or in the purported conspiracy surrounding its preparation and publication. The plaintiff was required to do this by GCR 116.4 and GCR 117.3. The latter sub-rule provides:

'The affidavits submitted by either party shall be governed by the provisions of sub-rules 116.4, * * *.'

GCR 116.4 requires that the affidavits:

'* * * shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion.'

This language is not satisfied with an affidavit which is based solely on 'information and belief'. See the decisions under the corresponding Federal rule. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312; F. S. Bowen Electric Co. v. J. D. Hedin Construction Co., 114 App.D.C. 361 (316 F.2d 362); Dietrich v. Standard Brands, Inc., D.C., 32 F.R.D. 325. Such an affidavit does not set forth with particularity facts which are admissible in evidence. The plaintiff's beliefs, although set forth with abundant particularity, are objectionable as opinion evidence. There is no basis given for the information he alleges. It may be hearsay or objectionable on some other evidentiary ground or it may be fully competent. The trial court was not given the means with which to make a determination. 2 C.J.S. Affidavits § 26a (2), p. 982. Although required to view the plaintiff's case in its most favorable light, the trial judge was given nothing to view. There was no issue of fact and he properly entered summary judgment for the defendants as required under GCR 117.3.

If it be thought that the plaintiff was denied his right to trial by jury, it must be remembered that affidavits with which we are here concerned in a summary judgment proceeding do not resolve issues of...