Peisner v. Detroit Free Press, Inc.

• Decision Date: 03 March 1981
• Docket Number: Docket No. 78-4776
• Citation: 104 Mich.App. 59,304 N.W.2d 814
• Parties: Balfour PEISNER and Nora S. Peisner, his wife, Plaintiffs-Appellees, v. The DETROIT FREE PRESS, INC., a corporation, and Louis Heldman, jointly andseverally, Defendants-Appellants. 104 Mich.App. 59, 304 N.W.2d 814, 7 Media L. Rep. 1601
• Court: Court of Appeal of Michigan — District of US

Page 814

304 N.W.2d 814

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

Docket No. 78-4776.

104 Mich.App. 59, 304 N.W.2d 814, 7 Media L. Rep. 1601

Court of Appeals of Michigan.

March 3, 1981.

Released for Publication April 30, 1981.

[104 MICHAPP 62] Brownson Murray, Detroit, for defendants-appellants.

Balfour Peisner, Detroit, for plaintiffs-appellees.

Before V. J. BRENNAN, P. J., and BRONSON and DEMING, ^* JJ.

DEMING, Judge.

Plaintiff Balfour Peisner, a Detroit attorney, filed a complaint against defendants Detroit Free Press and Free Press reporter Louis Heldman on December 10, 1973, seeking damages for libel. His wife, Nora S. Peisner, joined in the complaint with a derivative claim. The basis for the action was an article written by Heldman which appeared in the Free press on November 20, 1973. The article charged plaintiff Balfour Peisner with inadequate representation of an indigent[104 MICHAPP 63] criminal defendant in appellate proceedings and with unethical conduct. Plaintiffs claimed that the libel was repeated in a December 1, 1973, Free Press editorial.

On January 11, 1974, defendants filed a counterclaim alleging abuse of process by plaintiffs. Plaintiffs filed a motion to dismiss the counterclaim which was denied by the trial court. Plaintiffs prevailed in an interlocutory appeal to this Court and the counterclaim was dismissed. Peisner v. Detroit Free Press, Inc., 68 Mich.App. 360, 242 N.W.2d 775 (1976), lv. den. 399 Mich. 825 (1977).

On June 14, 1977, defendants filed a motion for summary judgment claiming that the complaint failed to state a cause of action and that there was no genuine issue of fact because the matters reported in the article and editorial were true and their publication was privileged. The trial court granted the motion and plaintiffs appealed to this Court which reversed and remanded the case for trial. In its opinion, the panel stated that defendants had a qualified privilege to publish the article in question which could be overcome by a showing of actual malice and that summary judgment was improper because plaintiffs' pleadings raised an issue of fact as to the existence of malice. Peisner v. Detroit Free Press, Inc., 82 Mich.App. 153, 266 N.W.2d 693 (1978). ¹

The case finally proceeded to trial, and, on September 15, 1978, the jury returned a verdict against defendants. Plaintiff Balfour Peisner was awarded $52,000 actual damages and $100,000 "additional" damages. His wife was awarded $5,000 actual damages. Defendants were held jointly and severally liable for the actual damages while only defendant Free Press was held liable for the [104 MICHAPP 64] additional damages. Defendants' post-trial motion for a new trial and/or remittitur was denied. Defendants now appeal as of right.

Defendants first argue that the trial court erred in refusing to instruct the jury that, in order to show malice, plaintiffs were required to establish that defendants acted with ill will and intended to injure plaintiff by means of a falsehood. We disagree. The jury was instructed that actual malice would be shown by proof that defendants wrote or published the article in question with knowledge that it was false or with reckless disregard for whether it was false or not. This instruction conforms to the definition of actual malice set forth by the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). While the type of definition advocated by defendants finds some support in Michigan law, see, e. g., Powers v. Vaughan, 312 Mich. 297, 20 N.W.2d 196 (1945), we believe that the disputed instruction was properly rejected because it would have eliminated the "reckless disregard" segment of the New York Times definition. The New York Times standard has been accepted by the Michigan Supreme court. Arber v. Stahlin, 382 Mich. 300, 170 N.W.2d 45 (1969); Wynn v. Cole, 91 Mich.App. 517, 284 N.W.2d 144 (1979).

Next, defendants claim that the trial court erred in allowing the jury to consider a letter in which plaintiffs demanded retraction of the charges and the December 1, 1973, editorial as evidence of malice. The malice must exist at the time of the original libelous publication, and the jury in the present case was so instructed. New York Times, supra. Statements or publications of a libel which a defendant has made subsequent to the one complained of have been held admissible as evidence [104 MICHAPP 65] tending to show the existence of malice at the time of the original publication. Thibault v. Sessions, 101 Mich. 279, 59 N.W. 624 (1894); Smith v. Hubbell, 142 Mich. 637, 106 N.W. 547 (1906). We find that the retraction demand and editorial were relevant and admissible on the question as to whether the defendants acted with malice in publishing the original article.

Defendants also claim that the jury was improperly allowed to consider the editorial as actionable in itself. The trial judge, outside the presence of the jury, interpreted this Court's decision in Peisner, supra, 82 Mich.App. 153, 266 N.W.2d 693, as holding that the editorial could not itself be the basis of a cause of action. The jury, however, was never specifically instructed that the editorial was not actionable. The trial court's instructions did indicate that the only publication in question was the original article:

"Now, I charge you, Members of the jury, that in this case in publishing this article in question on November 20th, 1973, the Defendants enjoyed what we call a qualified privilege, since under the law the press does enjoy a qualified privilege which precludes recovery for a claimed libel which is based upon the reports of matters of public interests, unless the Plaintiff establishes that the Defendants published an untruth (sic ) report with knowledge of its falsity or with a reckless disregard of the truth. Now, I hold and I am charging you, Members of the jury, that the article complained of in this case is defamatory." (Emphasis added.)

The judge read each side's theory of the case to the jury. Included in plaintiffs' theory was the claim that the editorial was libelous and caused injury to plaintiffs. Defendants now claim that the reading of this theory, coupled with the failure of the judge to instruct the jury that the editorial [104 MICHAPP 66] was not actionable, resulted in a damage award based in part on the publication of the editorial. Defendants did not object to the reading of plaintiffs' theory and never requested an instruction that the editorial was not actionable. Under these circumstances, any error was preserved for appeal only if it resulted in manifest injustice. Earle v. Colonial Theater Co., 82 Mich.App. 54, 266 N.W.2d 466 (1978), lv. den. 403 Mich. 816 (1978). We do not believe manifest injustice occurred in the present case. The editorial did not repeat the specific allegations of professional misconduct contained in the article, although it called for a Bar Association review of plaintiff, Balfour Peisner's conduct to determine if an ethical violation occurred. It is unlikely that the jury based its finding of liability on the editorial. Furthermore, the trial court had planned to give an instruction requested by plaintiffs which contained the statement that the editorial was not actionable. However, the proposed instruction was withdrawn following a defense objection to the failure of the instruction to state that the requisite malice had to exist at the time of the original publication.

During closing argument, plaintiffs' attorney read aloud a portion of defendants' pleadings in which the defense of truth was claimed. Defense counsel's objection was overruled and his request for a jury instruction that the pleadings could not be considered as evidence of malice was denied. In the post-trial motion, defendants argued that the pleadings were privileged and thus inadmissible. Defendants now argue that the pleadings were privileged and that the assertion of truth therein was improperly used as evidence of malice. Cases relied on by defendants include Hartung v. Shaw, 130 Mich. 177, 89 N.W. 701 (1902), and Bennett v. Attorney General, 65 Mich.App. 203, 237 N.W.2d [104 MICHAPP 67] 250 (1975), which held that statements made in pleadings are privileged and cannot form the basis for a libel action. In Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 108 N.W.2d 761 (1961), the court held that statements made in pleadings, if relevant to the issues of a case, are absolutely privileged. Based on these cases, we hold that the trial judge erred by allowing plaintiffs' counsel to make the argument based on defendants claim of truth and by failing to give the requested instruction. However, we find that this error was harmless under GCR 1963, 529.1 due to the evidence of malice which had been presented to the jury before the disputed argument was made. This included the publication of the editorial by defendant Free Press and its refusal to retract anything in the original article, although plaintiffs had demanded retraction in a letter which pointed out specific allegations in the article which plaintiffs claimed were false.

Defendants raise two issues concerning the propriety of the damage award. First, they argue that the trial court's instructions improperly authorized the jury to award multiple damages for the same injury to plaintiff Balfour Peisner's "feelings." The instructions were based in part on M.C.L. § 600.2911(2); M.S.A. § 27A.2911(2), which provides:

"(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...