Powers v. Vaughan

• Decision Date: 08 October 1945
• Docket Number: No. 61.,61.
• Citation: 312 Mich. 297,20 N.W.2d 196
• Parties: POWERS v. VAUGHAN et al.
• Court: Michigan Supreme Court

312 Mich. 297

20 N.W.2d 196

POWERS

v.VAUGHAN et al.

No. 61.

Supreme Court of Michigan.

Oct. 8, 1945.

Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Libel suit by Edward P. Powers against Dr. Henry F. Vaughan and another. The jury returned a verdict for plaintiff, but on defendants' motion for judgment notwithstanding the verdict, a judgment of no cause of action was entered, and plaintiff appeals.

Affirmed.

Before the Entire Bench.

John W. L. Hicks, of Detroit, for plaintiff and appellant.

William E. Dowling, Corp. Counsel, and James R. Walsh and Ralph Jossman, Asst. Corp. Counsels, all of Detroit, for defendants and appellees.

NORTH, Justice.

This is a libel suit. Plaintiff for more than 15 years prior to 1938 practiced as a masseur in Detroit. The defendant, Doctor Henry Vaughan, for many years and at the time of the alleged libel was a member of the board of health of the city of Detroit; and defendant Eleanor McGarvah at the time of the alleged libel was supervising nurse in the Detroit department of health and an assistant to Major Roehl who was also connected with that department. On trial before a jury in the circuit court plaintiff had a verdict and damages in the amount of twelve cents. After verdict, on defendants' motion for judgment non obstante, a judgment of no cause of action was entered. Plaintiff has appealed and asks that a new trial be ordered.

In 1938, an ordinance became effective in Detroit which required that those who desired to practice as masseurs should take and pass an examination as a prerequisite to being licensed to practice. This examination was under the supervision of the city department of health of which of defendant Doctor Vaughan was the head. In 1939, plaintiff took the examination, but failed to pass. Thereupon he filed a petition with the Detroit common council to be granted a license, notwithstanding he had failed to pass the examination. This petition was referred by the common council to the department of health, and an answer to the petition was filed with the common council by that department. Defendant Eleanor McGarvah has taken part in conducting the examination which plaintiff failed to pass. She, apparently at Doctor Vaughan's request, prepared the answer to plaintiff's petition and submitted it to Doctor Vaughan. He signed the answer and it was filed with the common council. This answer contained the following:

‘Replying to the tenth paragraph, this department submits a report of the violations of the Medical Practice Act: Case No. 1, 1-25-20, the petitioner through the press offered to cure any one suffering from influenza. He was prosecuted for violating the Medical Practice Act. His case was dismissed 2-25-20 as he promised not to practice medicine any more. Case No. 2, 11-3-22, William Tease, 4142 Grand River Avenue, signed a complaint charging Mr. Power with practicing medicine without a license. Mr. Power was bound over for trial 12-18-22 and after five adjournments his case was nolle prossed, as the complaining witness could not be found.'

The alleged libel in the instant case is based upon the foregoing portion of the answer to plaintiff's petition filed with the common council. Court records introduced in evidence in the instant case of the two prosecutions of defendant referred to in the above quotation establish in every material respect the truth of this portion of the quoted answer except in two particulars. The court records do not disclose (and plaintiff denies) that incident to the first prosecution plaintiff herein ‘through the press offered to cure anyone suffering from influenza’ or that the prosecution against him was dismissed ‘as he promised not to practice medicine any more.’ But in determining whether either or both of these statements constituted libel in consequence of which plaintiff can recover, it must be borne in mind that on the face of the answer it appears defendants herein merely said: ‘Replying to the tenth paragraph, this department submits a report of the violations of the Medical Practice Act, etc.’; and that it was true there was a report literally in accord with the context of defendants' answer in the file of the health department; and further that this portion of defendants' answer was in reply to the tenth paragraph of plaintiff's petition filed with the common council wherein he had set forth: ‘That being a law-abiding citizen and being desirous of complying with the laws of this city and state * * *’ he applied for and took the examination to which reference has hereinbefore been made.

The report in the files of the health department was made by Major Roehl whose duties in that department included making investigations and reports to the department of alleged violations of the medical practice act. The above quoted portion of defendants' answer to plaintiff's petition is an accurate statement of matters contained in Roehl's report filed in the Detroit department of health, and neither of defendants had any reason to question its verity.

In the foregoing we have not made note of plaintiff's claim that the recital in the above quoted answer that the second prosecution against plaintiff ‘was nolle prossed, as the complaining witness could not be found,’ was not an accurate statement of the record made in the trial court wherein it was stated: ‘Verdict dismissed on motion of defense.’ We deem this slight variance immaterial and in no sense libelous. Further, undisputed testimony in this case discloses that on an adjourned date for hearing the criminal case the complaining witness could not be found.

The grounds urged in support of plaintiff's claim that he is entitled to a new trial are: (1) That the trial court erred in receiving certain evidence, (2) that the court abused its discretion incident to the cross-examination of plaintiff, (3) that the court erred in receiving certain oral testimony and written notations which plaintiff claims tended to conflict with records of the recorder's court of Detroit, (4) that there was error because of certain prejudicial remarks made by the court and like remarksby defendants' counsel, and (5) that the court erred in its charge to the jury ‘in emphasizing the proposition of six cents verdict.’ We have given consideration to each of these claims but find them to be without merit. In any event, in view of the fact that decision on this appeal is controlled by our conclusion hereinafter expressed on another phase of the record, discussion in detail of the foregoing alleged errors would serve no purpose.

The controlling question on this appeal is whether the trial court was in error in entering judgment notwithstanding the verdict. There is no dispute concerning the facts or circumstances which gave rise to the issuing or publication of the alleged libelous statements upon which plaintiff relies. The record shows that the trial judge in granting defendants' motion for judgment non obstante veredicto based decision upon his conclusion that there was no evidence tending to establish malice on the part of defendants.

Our review of the record brings the conclusion that, as...