Hodgins Kennels, Inc. v. Durbin, Docket Nos. 84353

• Decision Date: 27 September 1988
• Docket Number: 84366,Docket Nos. 84353
• Citation: 170 Mich.App. 474,429 N.W.2d 189
• Parties: HODGINS KENNELS, INC. and Fred Hodgins and Jan Hodgins, formerly d/b/a Hodgins Kennels, Plaintiffs-Appellees, v. Mary Lou DURBIN and Cathy Blight, Jointly and Severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 189

429 N.W.2d 189

170 Mich.App. 474

HODGINS KENNELS, INC. and Fred Hodgins and Jan Hodgins formerly d/b/a Hodgins Kennels, Plaintiffs-Appellees, v. Mary Lou DURBIN and Cathy Blight, Jointly and Severally Defendants-Appellants.

Docket Nos. 84353, 84366.

Court of Appeals of Michigan.

Submitted Dec. 8, 1987.

Decided Aug. 2, 1988.

Released for Publication Sept. 27, 1988.

Levin, Levin, Garvett & Dill by Nancy L. Kahn and Jeffrey A. Heldt, Southfield, for plaintiffs-appellees.

Sullivan, Ward, Bone, Tyler, Fiott & Asher by Michael J. Walter, Detroit, for defendant-appellant Durbin.

American Civ. Liberties Union of Michigan by I.W. Winsten and Howard Yale Lederman, Detroit, for defendant-appellant Blight.

Animal Legal Defense Fund by David S. Favre, Detroit, for amici curiae Animal Legal Defense Fund, Michigan Humane Soc., Michigan Federation of Humane Societies, Humane Soc. of The U.S., Animal Protection Institute of America, Fund for Animals, Inc., and International Primate Protection League.

Before BEASLEY, P.J., and DOCTOROFF and SIMON, ^* JJ.

PER CURIAM.

Defendants appeal as of right from a jury verdict of $233,700 in favor of plaintiffs on their claims of defamation, tortious interference with business relations, and conspiracy to defame and to tortiously interfere. We reverse and remand for a new trial.

Plaintiffs are state and federally licensed dealers who receive or purchase unwanted animals from municipal and county dog pounds, specifically Garden City and Monroe and Livingston Counties. These animals are those which have not been adopted, are unclaimed, or about to be put to death. The animals then undergo certain conditioning which includes shots, worming treatments and quarantine. Plaintiffs sell these animals to hospitals, universities, and drug companies for use in medical research, experimentation, teaching, surgical and medical procedures, pharmaceutical testing, and toxicology studies.

Defendant Mary Lou Durbin, a teacher in the Garden City public schools, had done volunteer work for the Michigan Humane Society for approximately fifteen years and was a member of several animal welfare organizations.

Defendant Cathy Blight, a commercial artist, was the president of the Livingston County Humane Society from 1979 to 1983.

This litigation arises out of a number of allegedly defamatory oral and written statements which plaintiffs claim defendants made about them. Some statements made direct reference to plaintiffs; other statements referred to animal research that is performed on the animals once they are sold to the various facilities.

At trial, defendants testified that they did not meet each other until May, 1981 after plaintiffs filed this action. ¹ They assert that the statements that they made regarding their opposition to "pound seizure"--the practice of releasing pound animals for anything other than adoption as pets--are not actionable by plaintiffs.

Although defendants and amicus curiae raise a plethora of issues, it is plaintiffs' defamation claim that is central to the determination of this appeal, for plaintiffs have premised their claims of tortious interference with business relations as well as their claims of conspiracy on some of the same allegedly wrongful conduct. After reviewing the record, we find that the jury was improperly instructed on defamation, thus necessitating a new trial.

Defendant Durbin now claims that the trial court abused its discretion by denying her motion for new trial based upon several claimed errors in jury instructions. Blight cites three of the same alleged errors, arguing that they necessitate reversal and remand for a new trial.

Before we turn to the instructional error, however, we will first address defendants' other claims of error regarding the defamation count in order to provide a framework within which the jury instruction can be evaluated.

Defendant Durbin first claims that the trial court erred by denying her motions for directed verdict and judgment notwithstanding verdict on plaintiffs' defamation claim. Defendant Blight argues that plaintiffs' defamation claim fails as a matter of law.

In Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975), our Supreme Court addressed the standard to be used in making the determination whether a motion for a directed verdict should be granted:

"The jury, not the trial judge, is the trier of fact. Whenever a fact question exists, upon which reasonable persons may differ, the trial judge may not direct a verdict. Conversely, when no fact question exists, the trial judge is justified in directing a verdict. In deciding whether or not to grant a motion for a directed verdict, the trial judge must accord to the non-moving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion for a directed verdict must be denied. In Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 117 (1868), Chief Justice THOMAS M. COOLEY said:

" 'In determining this question, we must look at the case as it appears from the plaintiff's own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence.' "

In Smart v. The New Hampshire Ins. Co., 148 Mich.App. 724, 731, 384 N.W.2d 772 (1985), this Court articulated the applicable standard of review for motions for judgment notwithstanding the verdict:

"When faced with a motion for judgment notwithstanding the verdict the court must view the evidence in a light most favorable to the nonmoving party and decide if the facts presented preclude judgment for the nonmoving party as a matter of law. If the evidence is such that reasonable men could differ, the question is one for the jury and judgment notwithstanding the verdict is improper. See Drummey v. Henry, 115 Mich.App. 107, 320 N.W.2d 309 (1982), lv. den. 417 Mich. 895 (1983)."

In order to establish liability for defamation, a plaintiff must prove the existence of the following:

"(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod )."

Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 618, 325 N.W.2d 511 (1982), lv. den. 417 Mich. 1050 (1983), citing Restatement Torts, 2d, Sec. 558; Curtis v. Evening News Ass'n., 135 Mich.App. 101, 103, 352 N.W.2d 355 (1984); Morganroth v. Whitall, 161 Mich.App. 785, 789, 411 N.W.2d 859 (1987). See also Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 173-174, 398 N.W.2d 245 (1986). The fault which a plaintiff must prove varies with whether the allegedly defamed person, plaintiff, is a "public official or figure" or a private person. Postill, supra, 118 Mich.App., p. 618, 325 N.W.2d 511.

At trial, plaintiffs alleged that Durbin and Blight made numerous defamatory statements about them. They challenge a number of statements and documents as a whole, some of which referred to certain of plaintiffs by name. They also argue that defendants' combined written and oral statements about medical research and mistreatment of animals can reasonably be interpreted as reflecting on them because they are involved in a system of animal handling and medical research. Defendants, however, now contend that the statements they made were not statements "of and concerning plaintiffs."

A person does not have a cause of action for defamation unless it is he or she who is defamed. See Lewis v. Soule, 3 Mich. 514, 521 (1855); Curtis, supra, 135 Mich.App., p. 103, 352 N.W.2d 355. When a publication, on its face, makes no reference to a plaintiff, plaintiff must sustain the burden of pleading and proof, by way of "colloquium," that the defamatory meaning attached to him. When the defamatory words are directed at a group of persons rather than at an individual, the plaintiff must first show that he is a member of the class defamed. Where a statement contains not even an oblique reference to the plaintiff as an individual, the plaintiff's witnesses must show a basis for the belief that plaintiff was being attacked. New York Times Co v. Sullivan, 376 U.S. 254, 288-289, 84 S.Ct. 710, 730-31, 11 L.Ed.2d 686 (1964). Additionally, the plaintiff must establish some reasonable personal application of the words to himself. Beyond that, if the words have no personal application to the plaintiff, they are not actionable by him. See, e.g., Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 897-898 (WD Mich, 1980), aff'd 665 F.2d 110 (CA 6, 1981). Articles are to be read as a whole in determining whether portions of the articles are defamatory. Sanders v. Evening News Ass'n, 313 Mich. 334, 340, 21 N.W.2d 152 (1946); Croton v. Gillis, 104 Mich.App. 104, 108, 304 N.W.2d 820 (1981). It remains a question for the court whether the meaning claimed might reasonably be conveyed, and for the jury whether it was so understood. See Prosser & Keeton on Torts (5th ed, 1984), Defamation, Sec. 111, pp 782-783.

In the present case, a review of the evidence indicates that a defamatory meaning regarding plaintiffs may have been conveyed by defendants' statements. The trial court did not err by denying defendants' motions for directed verdict or judgment notwithstanding the verdict on this basis, for a factual issue existed upon...