Durant v. Stahlin

• Citation: 130 N.W.2d 910,374 Mich. 82
• Decision Date: 03 November 1964
• Docket Number: A,No. 35,35
• Parties: Richard DURANT, Plaintiff and Appellant, v. John H. STAHLIN and Charles A. Ferry et al., jointly and severally, Defendants. Charles King, George Bashara, Jr., Allen Merrell, and Robert Waldron, jointly and severally, Defendants-Appellees. pril Term.
• Court: Supreme Court of Michigan

Page 910

130 N.W.2d 910

374 Mich. 82

Richard DURANT, Plaintiff and Appellant, v. John H. STAHLIN and Charles A. Ferry et al., jointly and severally, Defendants.

Charles King, George Bashara, Jr., Allen Merrell, and Robert

Waldron, jointly and severally, Defendants-Appellees.

No. 35, April Term.

Supreme Court of Michigan.

Nov. 3, 1964.

Davidow & Davidow, by Larry S. Davidow, Detroit, for plaintiff and appellant

Ann E. Donnelly, Detroit, for defendant and appellee, Robert E. Waldron.

Charles H. King, Detroit, in pro. per.

Alfred A. May, Detroit, for Allen Merrell, defendant-appellee.

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

BLACK, Justice.

Before us are orders granting 4 identical motions for summary judgment. Such motions were filed by 4 of a greater number of correspondingly charged defendants. They were submitted and decided under the invoked shelter of GCR 1963, 117, formerly 1945 Rule 30, in an action ex delicto. That such orders were entered in a suit for damages suffered on account of an alleged conspiratorial tort is specially accented. Such accent will pinpoint a precedent which, according to view of those whose signatures appear below, should be recorded.

Each motion was supported by an affidavit sworn to by the interested movant only. ¹ Each of the affidavits sets forth a flat and conclusionary denial--that only--of the plaintiff's declared charge against the movant-affiant. Thus we are confronted with a fact made immutable by the Constitution; that in tort cases like the one at bar, where an issue of credibility rises directly from a prepossessed movant's solitary affidavit, summary judgment cannot be entered in favor of such movant without offense to the most sacred of all constitutional guaranties. See decisions of the Federal Supreme Court, cited and quoted post.

The burden of the mover for summary judgment in a tort case is loaded doubly. He cannot be said to have carried that burden unless he has made out--by detailed affidavit or affidavits, or detailed deposition or depositions, or indisputably verified and controlling documents, or controlling The specific question in this case is whether, plaintiff having failed to meet the respective affidavits of the 4 movants by nonconclusionary affidavit or affidavits in opposition, or by other counter showing permitted under GCR 1963, 117, the 4 motions for summary judgment were properly granted. We answer in the negative. Now for the facts, thus far disclosed, which defendant-appellees assign in support of affirmance of these summary judgments.

admissions placed in the record, or some forceful combination thereof--such a clear case for summary judgment as to leave no doubt whatever as to his right to judgment upon instruction should the pleaded case with its presented issues go to duly demanded jury trial. ²

Plaintiff sued all defendants for damages, arising out of publication of a scurrilously worded letter addressed May 10, 1962, by then State Senator John H. Stahlin, to the Fair Campaign Practices Commission. Plaintiff's complaint alleges that all defendants, 'jointly and severally, with malice, evil and ill will, and intending to ruin plaintiff's good name and reputation and particularly to drive him out of political activity, not only published generally the offensive document [exhibit 'A'] hereinbefore referred to,' but that they did wilfully, etc., cause copies of the same to be sent to certain prominent individuals, naming them, including certain gentlemen of the cloth. The complaint alleges further:

'36. That the defendants and co-conspirators, jointly and severally, knew or should have known the meaning of the words used in Exhibit A, and knew of should have known that the assertions therein made would be believed by persons reading or hearing the same as attributable to the plaintiff, and knew or should have known, and know or should know, its effect; yet the said defendants and co-conspirators, in furtherance of the conspiracy to injure the good name, fame and credit of the plaintiff, and his reputation in the community, and to drive him out of political activity, and in complete disregard of the truth, did publish said Exhibit A, and cause it to be circulated, so that the good name, fame, and reputation of the plaintiff have been greatly damaged and impaired, as hereinabove set forth, and his political activity which is his constitutional right has been and is being interfered with.'

By their respective motions defendant-appellees averred that plaintiff had failed to state, as against them, a cause of action. In addition, and as permitted by Rule 117, the defendant-appellees filed in support of such motions the affidavits to which reference has been made. To such affidavits plaintiff responded by affidavits alleging that each of the first 3 movants 'knew or should have known the contents of said document, exhibit 'A"; ³ that said exhibit 'A' was prepared 'for the purpose of publishing, circulating and distributing the same to the end that this deponent would be destroyed as a political First: The aforesaid letter was--on its face and upon publication thereof--actionably libelous of plaintiff if untrue in fact. Such conclusions is not seriously contested by the defendant-appellees. Further, and regardless of the contradictory assertions of plaintiff's counsel made below and here with respect thereto, we experience no difficulty in holding that the plaintiff's declaration states a cause of action for conspiracy to libel as against the 4 defendant-appellees. Thus, as to the latter point, the undersigned differ with the trial judge.

factor in the Republican Party,' and that each of the defendants, 'having lent himself to the main objective of destroying this plaintiff politically, and having identified himsele prominently as a party in the group above mentioned committed to the purpose of attacking and destroying this deponent politically, is equally responsible for all that was done in the attempt to consummate the purposes above described, and particularly the preparation, publication, distribution and circulation of exhibit A, the libelous document complained of.'

The trial judge's final conclusion was that the plaintiff's declaration did not state a cause; whereas we view the declaration as sufficient under what is known as 'notice' pleading. See 1 Honigman and Hawkins at 195, 196; GCR 1963, 111, and 1945 Court Rule 19. As their affidavits fairly attest, the declaration reasonably informed the defendant-appellees of the nature of the cause--for conspiring to libel--they were called upon to defend. Such is all that was required to resist summary judgment addressed to sufficiency of such a pleading.

Second: As already indicated, these motions for summary judgment have raised a protrudent question of credibility; a question which emerges from the fact that each affiant in this tort case is interested in the result all seek. See to the point RJA 27A.2158 [P.A.1961, No. 236]. And the conclusional denials of defendant-appellees, of overt or other abetting part in the preparation or publication of Senator Stahlin's letter, and the failure of 3 of them to deny knowledge, prior to publication of exhibit 'A', of the existence or content of exhibit 'A', definitely call into play the Supreme Court's latest view of summary judgment practice (United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176):

'On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. A study of the record in this light leads us to believe that inferences contrary to those drawn by the trial court might be permissible. The materials before the District Court having thus raised a genuine issue as to ultimate facts material to the rule of International Shoe Co. v. Federal Trade Comm'n [280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431], it was improper for the District Court to decide the applicability of the rule on a motion for summary judgment.'

Miller v. Miller, 373 Mich. 519, 129 N.W.2d 885, and other similar cases brought here, posing as they do in different settings the 'expanded' practice considered above, suggest that a few comments upon summary judgment practice in tort cases will guide judgment better when 'an impatient party or busy trial judge' wants a trial upon affidavits rather than by conventional means. The text to which reference has just been made appears in 1 Honigman and Hawkins (Michigan Court Rules Annotated 2d ed.), pp. 358, 359 as follows:

'There is considerable language in the cases emphasizing that a court should be slow to grant summary judgment and that the rules governing the procedure are to be construed...