Nuyen v. Slater

• Decision Date: 06 April 1964
• Docket Number: No. 40,40
• Citation: 372 Mich. 654,127 N.W.2d 369
• Parties: Faye NUYEN, Plaintiff and Appellant, v. Ellen SLATER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 369

127 N.W.2d 369

372 Mich. 654

Faye NUYEN, Plaintiff and Appellant, v. Ellen SLATER, Defendant and Appellee.

No. 40.

Supreme Court of Michigan.

April 6, 1964.

Milo O. Bennett, Kalamazoo, for plaintiff and appellant.

Paulson, Bennett & Palmer, by Thompson Bennett, Kalamazoo, for defendant and appellee.

Before the Entire Bench.

KELLY, Justice.

Plaintiff is a registered nurse employed by the Kalamazoo county health department. May 6, 1963, she filed a complaint against defendant alleging that she had been defamed in a letter written by defendant to the State Health Department, in Lansing. The letter, attached to the complaint and made a part thereof, is as follows:

'Dear Sir:

'I don't quite know how to write this letter in such a way that you won't think it is a crank letter.

'First of all, let me tell you I'm not one of these people who are dissatisfied with our country and everything in it, just the opposite I'm very proud of it and quite satisfied with most things.

'I am secretary of our Mother's Club and a very active member of the P.T.A. Now that I have told you about myself maybe you will listen to me.

'I am very disgusted with the Kalamazoo branch of your health department. There is a lady there named Mrs. Nyon [sic] who had handled health department business very poorly.

My neighbors--Mr. and Mrs. Robert Sanborn, adopted two Korean orphans within the last couple years. Everyone seems to have their own opinion whether it should be done or not! I am in favor of it and our President must have been or he would not have extended the bill like he did. This is why I cannot understand how Mrs. Nyon could treat these people like she has.

'The last little girl my neighbors brought into this country had worms (from what I hear so do a lot of American children). My neighbor took her little girl to one of our best specialist and she has been treated and he still checks her. Mrs. Nyon took it upon herself to walk up to my neighbor in a department store (after recognizing these little Korean girls) and say to her--Mrs. Sanborn I have containers in my car and I want you to take them home and you and your whole family are to use them. She also told my neighbor that worms were like typhoid. My neighbor got very hurt and mad to be approached and embarrassed in a public place and she told Mrs. Nyon No! Mrs. Sanborn then went home and called Dr. Dugger and asked him if this was necessary? He said No! Mrs. Sanborn is willing for her little girl to be tested further, but this does not satisfy Mrs. Nyon she has called another one of the neighbors in this plot a couple of times and talked about the Sanborns and has come this time to the Sanborns house insisting they all have to use these containers. She has upset my neighbor so much that her mother (who is 63 years old) has come to stay with Mrs. Sanborn. When Mrs. Nyon came the other day and started giving orders Mrs. Sanborn's mother pushed Mrs. Nyon away from her door and Mrs. Nyon grabbed the door and slammed it in Mrs. Newland's face. Now our Kalamazoo health department is taking Mrs. Sanborn's mother to court for a trial.

'Another lady in this same department told Mrs. Sanborn she didn't know why people brought these children over here anyhow! I believe there is prejudice here and I do not believe that if my own child had a case of worms and my doctor was treating it that they would have handled it with such poor taste.

'We have a health and welfare clinic at our school, we've had cases where the health department needed to step in, but these people have a very capable specialist and I don't think they should be interferred with. Also I would like to say the Sanborns are not only nice people, but probably the cleanest people the health department will ever meet.

'Thank you for listening to my complaint.

'Sincerely yours,

'(Signed) Mrs. Wm. Slater,

406 New Hampshire,

Kalamazoo, Michigan.'

Defendant moved for a summary judgment on the ground that plaintiff's complaint failed to state a claim upon which relief could be granted in favor of plaintiff. June 11, 1963, the trial court in granting this motion stated:

'There is no allegation in these pleadings that this wasn't the actual opinion of the critic. * * * We are not talking here in this letter about the private conduct of the plaintiff. We are talking about her activities in connection with her employment, and I think it should be fundamental that the public have the right to criticize and call to the attention of public authorities the conduct of employees which in the opinion of the complaining party, is not proper in connection with the official's duties. * * *

'I do not believe that this complaint, in reading the exhibit attached to it, states a cause of action, and the motion for summary judgment is granted, provided however, that the plaintiff may have--I am going to give her every opportunity--may have 15 days within which to amend the complaint to state a cause of action if she can and wishes to so amend. So, she can have 15 days in which to amend.'

Plaintiff filed an amended complaint. The trial court on July 2, 1963, in granting defendant's motion for summary judgment, stated:

'This case is based, and must be based, solely upon the letter written by the defendant to the State Health Department. * * * Poor taste is what she is talking about, handled poorly, and what nice people the Sanborns are.

'Now according to the complaint, after receipt of that, the State Health Department, to whom it was written, made its own findings and in their opinion 'Mrs. Faye Nuyen, Registered Nurse, was carrying out the usual functions of a public health nurse which, in this instance, was a request on the part of the family physician to check into the possible spread of an infectious ailment in the family. The uncooperativeness of the family with the nurse has resulted in unfortunate consequences.' Now, the family is the Sanborns, not Mrs. Slater who wrote this letter.

'I don't see for the life of me that the first amended complaint filed on June 17th states any cause of action any more than the original one filed on May 6, 1963. It is merely a letter from a citizen of the community expressing to the State Health Department that in her opinion the plaintiff used poor taste in the way she handled it. * * *

'So, for the same reasons as set forth previously, the motion is and summary judgment is granted.'

Plaintiff contends that since she was accused of having want of capacity or fitness for engaging in the profession of nursing, that this is a case of libel per se and thus proof of special damages is not required in order to maintain the action; that no qualified privilege exists because the statements of defendant were neither true nor privileged and there was no public entitled to know the opinion of the defendant, and that privilege cannot exist in the presence of malice.

Defendant, in opposition to plaintiff's appeal, urges that the words of the letter are not defamatory, but, even if they were and even if they were false, they were protected by qualified privilege.

The determination of whether a qualified privilege exists is properly for the court to decide as a matter of law. See Bostetter v. Kirsch Company, 319 Mich. 547, 30 N.W.2d 276; Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748, and Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719.

In the recent case of Bufalino v. Maxon Brothers, Icn., 368 Mich. 140, p. 153, 117 N.W.2d...