Grebner v. Runyon, Docket No. 66865

• Decision Date: 16 March 1984
• Docket Number: Docket No. 66865
• Citation: 347 N.W.2d 741,132 Mich.App. 327
• Parties: Mark L. GREBNER, Plaintiff-Appellant, v. Robert RUNYON, Defendant, and Megamedia, Inc., and Robert Black, Defendants-Appellees. 132 Mich.App. 327, 347 N.W.2d 741, 10 Media L. Rep. 1719
• Court: Court of Appeal of Michigan — District of US

Page 741

347 N.W.2d 741

Mark L. GREBNER, Plaintiff-Appellant, v. Robert RUNYON, Defendant, and Megamedia, Inc., and Robert Black, Defendants-Appellees.

Docket No. 66865.

132 Mich.App. 327, 347 N.W.2d 741, 10 Media L. Rep. 1719

Court of Appeals of Michigan.

Submitted April 19, 1983.

Decided Feb. 21, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 329] Paul C. Pratt, Lansing, for plaintiff-appellant.

Foster, Swift, Collins & Coey, P.C. by William R. Schulz, Lansing, for MegaMedia, Incorporated.

George H. Denfield and John W. Cotner, Lansing, for Robert L. Black.

Before V.J. BRENNAN, P.J., and KELLY and KAUFMAN, ^* JJ.

V.J. BRENNAN, Presiding Judge.

Plaintiff filed a defamation action against defendants Robert Runyon and MegaMedia, Incorporated on March 6, 1980. On January[132 MICHAPP 330] 16, 1981, plaintiff filed his first amended complaint in which he added Robert Black as a defendant.

This action arises out of the following factual situation. On October 31, 1979, defendant Black, an assistant to the Mayor of Lansing, allegedly told Arlo Earegood, a deputy county sheriff, that plaintiff, a county commissioner, had been indicted or charged with criminal tax evasion. Defendant Runyon, an employee of the Ingham County News, purportedly obtained the story either directly or indirectly from Earegood or Sharon Whipple, the county sheriff's personal secretary. Whipple or Earegood referred defendant Runyon to defendant Black for confirmation of the story. On October 31, 1979, defendant Runyon called defendant Black, who allegedly confirmed to Runyon that plaintiff was being investigated on tax charges and would appear in court on those charges on the following day. Plaintiff contends that by this statement defendant Black meant, and was understood to mean, that plaintiff was being charged with criminal tax evasion. In any event, as a result of the above events, on October 31, 1979, defendant Runyon called the following report into MegaMedia's WFMK radio station:

"Two Democratic County Commissioners have been indicted in Ingham County District Court on charges of not having paid their federal, state and Lansing City income tax for the past three years. The Commissioners, Pat Ryan and Mark Grebner, the targets of recent recall movements by organizations charging them with being against law enforcement, had no comment today although Ryan has called for a press conference Friday, at which time he is expected to submit his resignation from the board. Ryan is also under indictment for operating a junk yard in his home in Lansing. Grebner, who lives in East Lansing, works in Lansing, and is [132 MICHAPP 331] therefore liable for Lansing income tax provisions. This is Bob Runyon, reporting for WFMK."

On November 1, 1979, WFMK's news director, David Downing, broadcast the above report, verbatim, over the public airway. Subsequently, plaintiff requested that WFMK broadcast the following retraction:

"WFMK regrets that it previously reported that County Commissioner Mark Grebner had been indicted for failure to pay income taxes. We have now learned that Mr. Grebner is neither under indictment nor under investigation on any tax charges.

"As to city income taxes, Lansing City Attorney Steve Sawyer confirms that Mr. Grebner, who neither works nor lives in Lansing, owes no city taxes and is not obligated to file a return.

"WFMK regrets its error."

While the record is not entirely clear, it seems that, in lieu thereof, a report qualifying the original story was broadcast:

"It was reported earlier today, on WFMK, that County Commissioner, Mark Grebner of East Lansing, was indicted on income tax charges yesterday. In fact, he was not. However, Ingham County Commissioner, Pat Ryan, did appear in Ingham County Circuit Court yesterday to answer charges of income tax evasion. Another County Commissioner has admitted that he has not paid his 1978 taxes, and State Tax sources say that Commissioner Mark Grebner of East Lansing did not file a 1977 tax return either.

"Those Commissioners living outside of Lansing, but being paid by the County for holding meetings in Lansing may be subjected to the Lansing income tax provisions."

Thereafter, plaintiff filed the instant suit.

[132 MICHAPP 332] On September 1, 1981, defendant Black filed a motion for accelerated judgment, GCR 1963, 116.1(5). On September 16, 1981, defendant MegaMedia, Inc., filed a motion for summary judgment, GCR 1963, 117.2(3). After hearing arguments on the motions, the trial court granted both motions. Trial proceeded against defendant Runyon, following which the jury returned a verdict in favor of plaintiff for $7,500. Plaintiff appeals only from the orders granting defendant Black's motion and defendant MegaMedia's motion.

We first address plaintiff's claim that the trial court erred by granting MegaMedia's motion for summary judgment pursuant to GCR 1963, 117.2(3). The trial court found that Runyon was not an agent or employee of MegaMedia and that there was no genuine issue of fact as to MegaMedia's actual malice.

Plaintiff does not contest the trial court's ruling that he was a public official, and, in fact, plaintiff argues from that premise. Hence, plaintiff also concedes that the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), actual malice standard applies to the situation herein. Actual malice is an element which a plaintiff must prove in order to recover when the plaintiff is a public official or public figure. See Postill v. Booth Newspapers Inc., 118 Mich.App 608, 618-619, 325 N.W.2d 511 (1982). See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Hayes v. Booth Newspapers, Inc, 97 Mich.App. 758, 295 N.W.2d 858 (1980).

Actual malice is defined as knowledge that the published statement was false or as reckless disregard as to whether the statement was false or not. New York Times Co. v. Sullivan, supra; Zachrich v. Booth Newspapers, 119 Mich.App. 72, 325 N.W.2d [132 MICHAPP 333] 630 (1982). Reckless disregard for the truth is not established merely by showing that the statements were made with preconceived objectives or insufficient investigation. Johnson v. The Herald Co., 116 Mich.App. 523, 526, 323 N.W.2d 468 (1982). Furthermore, ill will, spite or even hatred, standing alone, do not amount to actual malice. Postill v. Booth Newspapers, Inc., supra, 118 Mich.App. p. 626, 325 N.W.2d 511. "Reckless disregard" is not measured by whether a reasonably prudent man would have published or would have investigated before publishing, but by whether the publisher in fact entertained serious doubts concerning the truth of the statements published. Postill v. Booth Newspapers, Inc., supra, pp. 624-625, 325 N.W.2d 511.

Plaintiff first contends that Runyon possessed the required malice and this malice should have been imputed to MegaMedia because Runyon was MegaMedia's agent.

The general rule as to the liability of corporations for defamatory utterances of their agents was set forth in Poledna v. Bendix Aviation Corp., 360 Mich. 129, 139-140, 103 N.W.2d 789 (1960), as follows:

" 'There is no longer any doubt that a corporation may be held liable for slander uttered by an agent while in the discharge of his duty as agent and in relation to the matter about which his duty as agent permits or requires him to act, in the same way and to the same extent as an individual could be held liable for the same slander.' Priest v Central States Fire Ins Co, 223 Mo App 122, 124; 9 SW2d 543 (1928)."

After reviewing the pleadings, affidavits, depositions and other documentary evidence, and giving the benefit of any reasonable doubt as to the existence of an issue of fact to plaintiff, we conclude that there was no error on the part of the [132 MICHAPP 334] trial court in finding that Runyon was not an agent of MegaMedia.

The evidence indicated that the Ingham County News executed an agreement with defendant MegaMedia, which provided that MegaMedia would broadcast advertisements for the Ingham County News, in exchange for which the Ingham County News would provide news stories to MegaMedia for radio broadcasting. Runyon was an employee of the Ingham County News. According to Runyon and two other affiants, Runyon was acting pursuant to the above agreement when he called in the news report in question. In addition, the evidence indicated that MegaMedia had no control over Runyon, nor did it otherwise direct his work. MegaMedia did not compensate Runyon for his work and did not have any right to discipline or fire him. MegaMedia's only control over the situation was to decide whether to broadcast Runyon's report. Plaintiff presented no evidence to the contrary. In light of the above facts, Runyon was not an agent of MegaMedia, and Runyon's malice cannot be imputed to MegaMedia.

In the alternative, plaintiff contends that, even if Runyon's malice cannot be imputed to MegaMedia, plaintiff's allegations were sufficient to present a genuine issue of material fact as to whether there was actual malice on the part of MegaMedia. A review of the record reveals that the trial court improperly granted summary judgment in favor of MegaMedia because plaintiff's allegations are sufficient to raise a question of fact as to whether there was actual malice on the part of MegaMedia.

In Steadman v. Lapensohn, 408 Mich. 50, 55, 288 N.W.2d 580 (1980), the Supreme Court stated:

"It is clear that the actual malice necessary to defeat [132 MICHAPP 335] a conditional privilege can be established by inference. Indeed, given the very subjective nature of the test for actual malice, circumstantial evidence may be the only kind available on the issue. In this case, we do not know whether a fact finder would infer actual malice from the present record. However, it is clear that the record was sufficient to create a genuine issue of fact as to that question." (Footnotes omitted.)

The person having...