Peisner v. Detroit Free Press, Inc.

• Decision Date: 29 January 1985
• Docket Number: No. 2,J,Docket No. 66849,2
• Citation: 364 N.W.2d 600,421 Mich. 125
• Parties: , 11 Media L. Rep. 1553 Balfour PEISNER and Nora S. Peisner, his wife, Plaintiffs-Appellants, v. The DETROIT FREE PRESS, INC., a corporation, and Louis Heldman, jointly and severally, Defendants-Appellees. une Term 1984. Calendar
• Court: Michigan Supreme Court

Page 600

364 N.W.2d 600

421 Mich. 125, 11 Media L. Rep. 1553

Balfour PEISNER and Nora S. Peisner, his wife, Plaintiffs-Appellants, v. The DETROIT FREE PRESS, INC., a corporation, and Louis Heldman, jointly and severally, Defendants-Appellees.

Docket No. 66849, June Term 1984.

Calendar No. 2.

Supreme Court of Michigan.

Argued June 6, 1984.

Decided Dec. 28, 1984.

Released for Publication Jan. 29, 1985.

Balfour Peisner, Southfield, for plaintiffs-appellants.

Honigman, Miller, Schwartz & Cohn by Herschel P. Fink, Brian D. Figot, Detroit, The Detroit Free Press, Inc., and Louis Heldman, for defendants-appellees.

BOYLE, Justice.

We granted leave in this case to consider whether an award of "exemplary and punitive" damages under Michigan's libel statute impermissibly duplicates an award of actual damages for injury to feelings arising from the libel. In addressing that question, we reaffirm that "exemplary and punitive" damages under the libel statute are purely compensatory in nature, but hold that their availability requires a showing of common-law malice. We further hold that, under proper instruction, a jury may award exemplary and punitive damages that are not duplicative of actual damages for injury to feeling. Because exemplary and punitive damages were awarded in this case in the absence of a proper malice instruction, we affirm the Court of Appeals judgment remanding for a new trial on damages, but modify that decision in accordance with the principles set forth below.

I

Plaintiff Balfour Peisner, an attorney, brought this action against defendants the Detroit Free Press and its reporter Louis Heldman claiming actual and punitive damages for libel arising from the publication of an article written by Heldman that appeared in the Free Press in November, 1973. ¹ Following two pretrial appeals to the Court of Appeals on issues not relevant here, ² the case was tried before a jury and a verdict returned against Heldman and the Free Press jointly in the amount of $52,000 actual damages and against the Free Press alone for $100,000 "additional" damages. ³ The Free Press' motion for a new trial and remittitur was denied.

On appeal, the Court of Appeals rejected the Free Press' arguments relative to liability, but remanded for a new trial on damages on the basis of a finding that the damage instructions given permitted the jury to compensate Peisner twice for injury to feelings, as an element of both "actual" and "exemplary and punitive" damages. The court found that such a double recovery of mental injury damages was "a form of punishment which is not permitted in this state," requiring a redetermination of damages to compensate Peisner only once for injury to feelings. Peisner v. Detroit Free Press, Inc., 104 Mich.App. 59, 71, 304 N.W.2d 814 (1981). Judge V.J. Brennan concurred in a separate opinion expressing his concern with the confusion arising from use of the term "punitive" to describe a purely compensatory element of damages. Id., at 71-72, 304 N.W.2d 814. ⁴

Peisner appealed to this Court, requesting, inter alia, that we rule true punitive (punishment-type) damages to be recoverable under the Michigan libel statute and that the Court of Appeals remand order be modified accordingly. No cross-appeal as to liability was taken by the Free Press. ⁵

In short, we reject Peisner's invitation to depart from an established rule precluding true punishment-type damages in libel cases. We find however that common-law malice is a prerequisite--unsatisfied in this case--to recovery of "exemplary and punitive" damages for libel. We affirm the judgment of the Court of Appeals, but remand for a new trial as to punitive and exemplary damages only.

II

The starting point in our analysis is Sec. 2 of the Michigan libel statute, M.C.L Sec. 600.2911; M.S.A. Sec. 27A.2911, which in separate subsections provides for the recovery of "actual" damages and "exemplary and punitive" damages:

"(2)(a) Except as provided in (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages which he has suffered in respect to his property, business, trade, profession, occupation, or feelings.

"(b) Exemplary and punitive damages shall not be recovered in actions for libel unless the plaintiff, before instituting his action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages. The retraction shall be published in the same size type, in the same editions and as far as practicable, in substantially the same position as the original libel."

Subsection (a) defines "actual damages" to include damages suffered in respect to feelings, while subsection (b) permits recovery of "exemplary and punitive damages" provided a request for retraction is made and a reasonable time allowed for the defendant to publish the retraction. The publication of such a retraction does not preclude an award of exemplary and punitive damages, but is admissible on the question of defendant's good faith and in mitigation and reduction of such damages.

At first blush the use of the terms "exemplary and punitive" suggests a legislative intent to permit an award of damages--in addition to actual damages--for the purposes either of punishing (i.e., specifically deterring) defendant or of making an example of defendant for the benefit of other potential purveyors of libel (i.e., generally deterring). The history of that provision and the Michigan cases interpreting it, however, reveal that not to be the case.

Even before the original version of our libel statute was enacted, this Court had established the principle that "vindictive or exemplary" damages for libel are merely a species of "actual" (i.e., compensatory) damages awarded to compensate plaintiff for the increased injury to feelings directly attributable to defendant's fault in publishing the libel:

"It is in connection with the various degrees of blameworthiness chargeable on wrong-doers, that the discussions have arisen upon the subject of vindictive or exemplary damages, which, inasmuch as they rest upon actual fault, are by some authorities said to be designed to punish the wrong intent, while, according to others, the damages usually so called are only meant to recompense the sense of injury which is in human experience always aggravated or lessened in proportion to the degree of perversity exhibited by the offender. While the term exemplary or vindictive damages has become so fixed in the law that it may be difficult to get rid of it, yet it should not be allowed to be used so as to mislead, and we think the only proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured. This is often the greatest wrong which can be inflicted, and injured pride or affection may, under some circumstances, justify very heavy damages." Detroit Daily Post Co. v. McArthur, 16 Mich. 447, 452-453 (1868).

See also Scripps v. Reilly, 38 Mich. 10, 23-24 (1878).

The first version of the libel statute, enacted in 1885, omitted any reference to injury to feelings as an element of actual damages. ⁶ Perhaps due to Justice Campbell's criticism of that omission in Park v. The Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731 (1888), the Legislature in 1895 added injury to feelings as an element of actual damages, separate from the existing provision for "exemplary or punitive" damages. ⁷ Thus, beginning with the 1895 enactment, all reenactments and compilations of the libel statute through the present day version have provided for recovery both of actual damages--including compensation for injury to feelings--and of "exemplary or punitive damages." ⁸

Notwithstanding the separate treatment of "actual" injury-to-feelings damages and "exemplary or punitive damages" in the statute, this Court continued to interpret the terms "exemplary or punitive" as referring to damages intended solely to compensate plaintiff for the increase in injury to feelings attributable to defendant's fault (or malice, in the common-law sense) in publishing the libel. See, e.g., Long v. Tribune Printing Co., 107 Mich. 207, 65 N.W. 108 (1895); Boydan v. Haberstumpf, 129 Mich. 137, 140, 88 N.W. 386 (1901); Poledna v. Bendix Aviation Corp., 360 Mich. 129, 144, 103 N.W.2d 789 (1960).

Because the Legislature, cognizant of this long-standing judicial gloss limiting exemplary and punitive damages to a compensatory role, has on several occasions through the years reenacted the libel statute without change, we conclude the Legislature intended that any award of "exemplary and punitive" damages comport with the established common-law gloss on those terms. Indeed, the latest reenactment of the libel provision in 1961 was accompanied by a committee comment stating that the new enactment was to be "considered in light of the interpretation of the present statute." ⁹ See Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 629, 325 N.W.2d 511 (1982), lv. den. 417 Mich. 1050 (1983).

In reaffirming that both "actual damages" for injury to feelings and "exemplary and punitive damages" are intended only to compensate, we stress that these two categories of compensation damages are independent. The difference between them was highlighted by Justice Wiest in a case involving assault damages, Wise v. Daniel, 221 Mich. 229, 233-234, 190 N.W. 746 (1922):

"If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the 'cussedness' of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim's sense of outrage. If a man employs spite and venom in administering...