Rouch v. Enquirer & News of Battle Creek

• Decision Date: 16 July 1990
• Docket Number: Docket No. 108595
• Citation: 457 N.W.2d 74,184 Mich.App. 19
• Parties: , 17 Media L. Rep. 2305 David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 74

457 N.W.2d 74

184 Mich.App. 19, 17 Media L. Rep. 2305

David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK, Defendant-Appellant.

Docket No. 108595.

Court of Appeals of Michigan.

Submitted Aug. 8, 1989.

Decided June 4, 1990.

Released for Publication July 16, 1990.

John M. Jereck, Battle Creek, for plaintiff-appellee.

Nixon, Hargrave, Devans & Doyle by Robert C. Bernius, Washington, D.C., and Sullivan, Hamilton & Schulz by James M. Sullivan, Battle Creek, for defendant-appellant.

Before MURPHY, P.J., and NEFF and ALLEN, ^* JJ.

NEFF, Judge.

In this libel action, which is based on a news report of plaintiff's arrest published by defendant newspaper on December 22 1979, defendant appeals as of right from a jury verdict awarding plaintiff $1 million. We affirm.

I

The underlying facts are not in dispute. At the time of publication plaintiff was a single, forty-three-year-old man residing with his two children, Tony and Nick, at 631 Golden Avenue in Battle Creek. He had lived there for some thirteen years and had been employed at Post Cereals-General Foods for some twenty-three years.

On December 20, 1979, plaintiff met his ex-wife, Shannon Mayo, at a lounge after work. After having some drinks, plaintiff and Mayo went to Mayo's home to feed her children, ages nine and eleven, and to arrange for a baby-sitter. While Mayo changed her clothes, plaintiff picked up the baby-sitter and returned to Mayo's home. They went out for the evening, ending up at the lounge where they had met after work. After staying at the lounge until 2:30 a.m., December 21, 1979, they went to plaintiff's home on Golden Avenue where plaintiff's son Nick was sleeping on the couch. After talking a short while they went to bed.

Sometime later, plaintiff was awakened by Nick who said that the police were at the door. The police officers told plaintiff that they had come to pick him up on a sexual charge of some sort. Plaintiff informed the officers they had the wrong person and, if they would go inside and talk with the lady whom he was with, she would tell them that they had the wrong person. The officers refused to do so and took plaintiff to the Bedford Township Police Department.

There plaintiff repeated the story he had told the police officers. Plaintiff was removed to the county jail at about 6:30 a.m., Friday, December 21, 1979, but, about 2:00 p.m., he was released on a personal recognizance bond, on the condition that he appear for arraignment on December 28, 1979. When plaintiff appeared for arraignment, he was told by the court clerk that charges had not been filed and he was free to go. A formal warrant was never issued and, several months later, another person was charged with the offense.

Page B-5 of the December 22, 1979, morning edition of the Enquirer & News of Battle Creek carried the following news article:

A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old women [sic] who was baby-sitting with his children at his ex-wife's house on North Finlay Avenue in Bedford Township.

The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.

Police said Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim's clothes off, police said.

The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.

Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.

The charge against Rouch was authorized Friday by the Calhoun County Prosecutor's office.

Stan Kaufman, ten-year veteran police beat reporter for the Enquirer, typed the story after receiving the information by telephone from Bedford Township police. It is Kaufman's practice to make the rounds of the area police departments each day either in person or by telephone.

On November 26, 1980, eleven months following publication, plaintiff for the first time contacted the Enquirer and demanded a retraction within ten days. On December 3, 1980, a retraction was published. On December 5, 1980, plaintiff filed suit alleging that the article concerning plaintiff's arrest was false and defamatory.

II

On June 14, 1982, the Calhoun Circuit Court granted the Enquirer's motion for summary disposition on the ground that a report of an arrest is of general public interest entitling a newspaper to a qualified privilege. Plaintiff appealed to this Court. In Rouch v. Enquirer & News of Battle Creek, Michigan, 137 Mich.App. 39, 47, 357 N.W.2d 794 (1984), this Court reversed and held that the statutory qualified privilege contained in M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3) was inapplicable because no warrant was issued and there were no official proceedings.

Defendant appealed to our Supreme Court. In Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 167, 398 N.W.2d 245 (1986), the Supreme Court agreed with the Court of Appeals that the statute does not apply, but reached that conclusion through a different analysis. The Supreme Court reasoned that an arrest that amounts to no more than an apprehension is not a "proceeding" under the statute. 427 Mich. at 172-173, 398 N.W.2d 245. Accordingly, the Court concluded that the information which was orally furnished Kaufman did not enjoy the privilege afforded by the "public and official proceedings" statute.

The Supreme Court also adopted the negligence standard of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and held that plaintiff was not required to show malice on the part of defendant. 427 Mich. at 202-203, 398 N.W.2d 245. Instead, the Court held that a report of an arrest and the facts used to establish the probable cause for that arrest amount to speech of a public concern and that the rule of Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), applied. 427 Mich. at 206, 398 N.W.2d 245. In so holding, the Court stated at 206, 398 N.W.2d 245:

Because of the importance of this type of information in a free society, plaintiffs who choose to bring actions in libel on the basis of such reports must first prove that the statements were false in addition to proving that defendants were negligent in so reporting.

The case was remanded to the trial court for proceedings consistent with our Supreme Court's opinion.

III

A

On February 9, 1988, an eight-day trial commenced in circuit court. Plaintiff, his former wife, and his two sons testified to the events occurring on the afternoon and early morning of December 20 and 21, as set forth above.

Plaintiff's expert witness, Clark Mollenhoff, professor of journalism at Washington University, testified over objection that Kaufman was negligent because he did not get the other side of the story. He observed that police evidence is often drawn from irresponsible sources and that good journalism at least requires some follow-up checking on the accuracy of the police report. He stated that there was no time pressure in the instant case and there was time for Kaufman to contact Rouch or other witnesses, including Mayo. He testified that Kaufman was also negligent because he did not attend seminars to learn the methods and standards of investigative reporting. In addition, he testified that the newspaper itself was negligent because the editor approved what Kaufman had written without any substantive changes at all. Mollenhoff also found the "retraction" by the Enquirer insufficient. According to Mollenhoff, the purpose of a retraction is to give notice to the public that there was nothing to the first story that was printed. Instead, the "retraction" merely said that the decision not to prosecute was based on insufficient proof, which could indicate that there was some evidence against Rouch. When asked what effect the article had on the average reader, he replied that the Enquirer's use of the word "allegedly" did not sufficiently detract the reader from the fact that the statements made by the police were false. According to Mollenhoff, the average reader would conclude that Rouch committed the brutal rape and that his children absolutely identified him as the person involved.

At the conclusion of Mollenhoff's testimony, defense counsel cross-examined plaintiff, who testified that he made no effort to get in touch with the Enquirer after seeing the article, but that he did sue the township for false arrest and settled out of court. He explained that he hoped the matter would die but, when it did not, he filed suit. He conceded that he suffered no loss of wages, incurred no medical expense, and lost no fringe benefits or promotions because of the article.

Mayo and plaintiff's two sons testified at trial regarding the events transpiring the night plaintiff was arrested, and some eight friends and co-workers testified as to the effect the printed article had upon them.

Defendant's motion for a directed verdict was denied in all respects but one. The court held that, because plaintiff had not established actual malice, punitive and exemplary damages would not be allowed.

B

The first defense witness to testify was Kaufman. He testified that it was his usual procedure to make the police department rounds in person, but after 8:00 a.m. he made his contacts by telephone. Kaufman stated that he came upon the Rouch story when the Bedford Township police told him a man had been arrested and gave him some particulars of the incident. Kaufman also stated that it was decided that the story would not be used for the Friday, December 21, edition of the paper, and he did not get the entire story until the...