SanDers v. Evening News Ass'n

• Decision Date: 07 January 1946
• Docket Number: No. 43.,43.
• Citation: SanDers v. Evening News Ass'n, 313 Mich. 334, 21 N.W.2d 152 (Mich. 1946)
• Parties: SANDERS v. EVENING NEWS ASS'N et al.
• Court: Michigan Supreme Court

313 Mich. 334

21 N.W.2d 152

SANDERS

v.EVENING NEWS ASS'N et al.

No. 43.

Supreme Court of Michigan.

Jan. 7, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Action by Joseph Sanders against the Evening News Association, a corporation, and another, for libel. From a judgment entered on defendants' motion dismissing plaintiff's declaration, plaintiff appeals.

Judgment affirmed.

Before the Entire Bench.

Eugene G. Donohoe, of Detroit, for plaintiff and appellant.

Butzel, Eaman, Long, Gust & Kennedy, of Detroit (A. Hilliard Williams and Percy M. Lovett, both of Detroit, of counsel), for appellees.

NORTH, Justice.

This is an appeal from a judgment entered on defendants' motion dismissing plaintiff's declaration. The cause arose from the alleged libelous nature of certain articles written by defendant Tendler and published in a newspaper owned by defendant The Evening News Association. Defendant Tendler was a reporter and feature writer for the Detroit News and as such prepared a series of articles relating to certain practices then in vogue in some of the Detroit courts concerning releases granted to persons arrested for misdemeanors immediately after the arrest by police officers. This series of articles was published by the Detroit News in the issues of July 27, 28, 29, 30 and 31 of 1942. The plaintiff occupied the office of one of the judges of the common pleas court for the city of Detroit from April 10, 1933 to April 8, 1935, a period approximately seven years prior to the publication of the articles complained of. Plaintiff began suit by summons July 21, 1943. The first of the articles published was prefaced by the following:

‘Editor's Note: This is the first of a series of articles by a veteran News reporter, who served for years on the police and court beats, dealing with the problem of overnight releases of persons arrested for misdemeanors-releases made by the police at the telephoned request of judges. The News offers the series in a constructive effort to end the periodic feuds and scandals which result from the current system.’

Each of the following publications was prefaced by note of like purport, and in each of them there was embodied the sentence last above quoted. The phase of law enforcement at which these articles were aimed and as to which a reformation was sought to be accomplished is to some extent indicated by the following portion of the article first published:

‘Now, whether the prisoner spends the night in jail depends upon a courtesy arrangement between the police and judges which has no standing in law but which has existed on and off for 20 years. During the ‘on’ periods, the arrangement works somewhat as follows:

‘The operators of the illegal establishment have a standing arrangement covering such arrests with one of a small group of lawyers and professional bondsmen whose business is confined largely to the criminal court. After the raid, the operator telephones his lawyer or bondsman, giving him the names of the patrons picked up in the raid. The lawyer or bondsman telephones a particular judge and the judge telephones the police to request that the prisoner be released overnight. The prisoner is released, and appears in court the next morning.’

As bearing upon the legality of the practice and procedure above referred to, see In re Mead, 220 Mich. 480, 190 N.W. 235; wherein such order of a judge to release upon bond was held to be illegal. In his original declaration plaintiff makes the following allegations:

‘Sixth: That on the 27th day of July, 1942, the defendants hereinbefore mentioned falsely and maliciously published of the plaintiff in said article the following words:

“Something always happens to embarrass the police and restore the old telephoned request system, such as the time former Judge Joseph Sanders walked into Bethune Station one night, banged his gavel on the startled sergeant's desk and shouted:

“‘Court's in session, the honorable Joseph Sanders presiding. Bring in Joe Doakes!’'

‘Seventh: That on the 28th day of July, 1942, the defendants herein falsely and maliciously published of the plaintiff in said article the following words:

“But almost always there has been a judge or two, bound to a bondsman or lawyer either by affection or campaign contribution, or over-impressed by judicial prerogatives, who has turned the order (of the head of the police department not to release on telephone request) into a farce. Witness the case of * * * the impromptu court session held in Bethune Station by former Judge Joseph Sanders.”

In an amended declaration plaintiff quotes more at length from the published articles and inserts innuendo in which he alleges defendants by the publication meant to convey that plaintiff was guilty of misfeasance, malfeasance and corrupt practices in the office of judge of the common pleas court, and thereby ‘maliciously to injure the plaintiff, in his good name, fame, and credit, and to bring him into public scandal, infamy and disgrace, and to public scorn, mockery, ridicule and contempt, * * *.’ By their answers to the original declaration and to the amended declaration defendants admit publishing the articles but they allege the quoted portion of the article published July 27 relative to plaintiff's attempting to hold court in the Bethune police station is true, and in effect defendants deny all the other material allegations in plaintiff's pleadings in consequence of which plaintiff charges libel.

Our review of this record brings the conclusion that under plaintiff's own pleadings he is not entitled to recover in consequence of the publication of July 27, 1942. This is so because in his amended declaration plaintiff admits the truth of the July 27th publication in so far as it could possibly tend to support an action for libel. Since that publication was true, it was not libelous. Sullings v. Shakespeare, 46 Mich. 408, 9 N.W. 451,41 Am.Rep. 166. This narrows the instant case down to the question of whether the publication of July 28th, 1942, set forth plaintiff's pleadings as hereinbefore quoted, can justly be construed to constitute a publication of libelous matter in consequence of which plaintiff might establish by trial on the merits a right to recover.

Notwithstanding the published articles are not set forth in full in plaintiff's pleadings, apparently with the consent of counsel, the trial judge had before him and considered when passing...