Timmis v. Bennett

• Decision Date: 15 April 1958
• Docket Number: No. 47,47
• Citation: 352 Mich. 355,89 N.W.2d 748
• Parties: Iva D. TIMMIS, Plaintiff and Appellant, v. Milo O. BENNETT, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 748

89 N.W.2d 748

352 Mich. 355

Iva D. TIMMIS, Plaintiff and Appellant, v. Milo O. BENNETT, Defendant and Appellee.

No. 47.

Supreme Court of Michigan.

April 15, 1958.

Leo W. Hoffman, Allegan, Frederick D. McDonald, Kalamazoo, for plaintiff and appellant.

Milo O. Bennett, in pro. per., Roscoe G. Goembel, Kalamazoo, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

This is an action for damages based on the publication of alleged false and malicious statements concerning plaintiff. Defendant is an attorney at law, practicing his profession in the city of Kalamazoo. At the time of the occurrence of the events from which this litigation has resulted plaintiff was employed in the police department of said city. In her official capacity she acted as coordinating officer between her department and the juvenile court office and other official agencies in the city and county.

On August 17, 1954, plaintiff and two policemen of the city served a warrant on Mrs. Clara Roblyer who was charged with violating a city ordinance relating to the maintenance of dwelling houses. To the charge Mrs. Roblyer pleaded guilty before the municipal court of the city of Kalamazoo, and was placed on probation. Thereafter, plaintiff, following consultation with the city attorney, filed a petition in probate court alleging Mrs. Roblyer to be mentally incompetent, and asking for the appointment of a guardian for her. In this proceeding defendant Bennett entered his appearance, and subsequently the petition was withdrawn.

The record before us indicates that defendant herein contemplated starting in Mrs. Roblyer's behalf an action for damages against those responsible for the guardianship proceeding. On December 1, 1954, he sent to a number of individuals, some of whom lived in the city of Kalamazoo and others who resided elsewhere, mimeographed copies of a letter which plaintiff claims contained statements libelous as to her, alleging in her declaration that defendant acted maliciously for the purpose of destroying her good reputation and of causing her to lose her position with the city police department. Defendant by answer, to which were attached certain affirmative defenses, denied that his statements in said letter with reference to plaintiff were false, denied that they were libelous, and, further, claimed that he acted without any malice toward plaintiff, or with any desire to injure her.

The communication in question was sent to several people, at least eight in number. Some of the recipients thereof were witnesses on the trial in circuit court and denied that they were interested in any way in Mrs. Roblyer's case. It further appears that in some instances the recipients showed defendant's communication to others, or at least permitted others to read it. Without setting the letter forth in full, it referred to the arrest of Mrs. Roblyer on the charge of violating the building code of the city, charging violence on the part of the officers makign the arrest, and specifically pointing out that plaintiff was one of such officers. Emphasis was placed on the effect that the arrest had on Mrs. Roblyer, the imputation being that her treatment by the police was reprehensible, and the court proceedings against her were referred to as a 'jest and mockery.'

The general tenor of defendant's letter is indicated by the following excerpts therefrom:

'Police motives are never readily discernible. Often, as in this case, there is no rhyme or reason for the official misconduct. It is sometimes thought that an individual's lust for power over his fellows, when particularly gratified by official appointment, may swell to the bursting point as the shackles of conscious inferiority gradually fall away. Whatever, it may have been here, those officers, composing that picayune 'police state' we know in Kalamazoo, might well have escaped the disaster to which they are now foredoomed but for their persistence in persecuting Mrs. Robyler. * * *

'But, without warning, on Friday, October 29, Iva Timmis, this same policewoman, personally served on Mrs. Roblyer, from the Probate Court (where all lunacy cases are heard), an Order charging that 'Clara Roblyer is a mentally incompetent person' and commanding her to appear in Court November 23, to defend herself against the charge. The Judge of Probate had been induced to issue this atrocious Order on the verified petition of none other than 'Iva Timmis' who swore, not on information and belief, but of her positive knowledge that

"* * * Clara Roblyer is of the age of sixty (60) years or thereabouts; that she is mentally incompetent to have the charge, custody and management of her person and estate.'

* * *

* * *

'Mrs. Timmis had no such proof and she knew it. She knew it when she filed the petition in Probate Court making this abominable charge against Mrs. Roblyer. She knew she was as wrong then as she had been when she joined in those wicked atrocities last summer. But she relied on the police star she owns and the cute, little gun she carries in her handbag! When she found, to her dismay, that Mrs. Roblyer was no longer the poor, helpless little creature she had last seen in police court, like all cowards, she scurried for cover.'

Following the introduction of plaintiff's proofs in the trial court, defendant moved for a directed verdict in his favor, claiming that the statements made by him in the communication that he circulated among others in the community were absolutely privileged because of the fact taht he was acting as attorney for Mrs. Roblyer. The motion was granted, the trial judge determining the issue of privilege in favor of defendant. The jury was instructed accordingly, and judgment was entered on the directed verdict. Plaintiff has appealed.

The circuit judge, in taking the action indicated, concluded that the statements set forth in the letter which plaintiff in her declaration had claimed to be libelous were made by defendant solely in the interests of his client, and that because of his status as an attorney such statements were absolutely privileged. The further view was indicated, as a basis for the directed verdict, that if the privilege were merely qualified there was no evidence of malice, and that such issue could not, in consequence, be properly submitted to the jury. In the brief filed by him in this Court, appellee argues that the trial court was correct in his conclusions. On behalf of appellant it is insisted that she was entitled to a determination by the jury of the factual questions in the case, and that the trial judge was in error in holding that defendant's statements were privileged.

It has been generally recognized by Court decisions in this State, as well as in other States, that the doctrine of absolute privilege should not be extended beyond certain recognized fields. The reason therefor was tersely suggested by Justice Champlin in Bacon v. Michigan Central Railroad Company, 66 Mich. 166, 3 N.W. 181, 183, as follows:

'The great underlying principle upon which the doctrine of privileged communications stands, is public policy. This is more especially the case with absolute privilege, where hte interests and necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires that individual to surrender his personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits.'

In Raymond v. Croll, 233 Mich. 268, 206 N.W. 556, 557, this Court declained to recognize as absolutely privileged statements made by the State budget director to the State administrative board with reference to the financial responsibility of the plaintiff, a highway construction contractor. In reaching such conclusion the Court quoted with approval from Newell, Slander and Libel (4th ed.), § 351, as follows:

"Cases of absolute privilege are not numerous, and the courts refuse to extend their number. They are divided into three classes. (1) Proceedings of legislative bodies; (2) Judicial proceedings; and (3) Communications by military and naval officers."

The Court further stated that:

'It is the policy of the courts to keep the doctrine of absolute privilege within these narrow limits, because, as Mr. Newell says: 'It rests upon the same necessity that requires the individual to surrender his personal rights and to suffer loss for the benefit of the common welfare.'

"Generally speaking, absolute privilege is confined to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used. It applies more directly to matters of public concern, such as language used in legislative, judicial and executive proceedings; and it is not intended so much for the protection of those engaged in the service, as it is for the promotion of the public welfare.' 36 C.J. § 204, pp. 1240, 1241.

'Our court recognizes the rule of absolute privilege, but it has repeatedly refused to extend its application beyond the necessities of the judicial, legislative, and military occasions. Mundy v. Hoard, 216 Mich. 478, 185 N.W. 872; Bolton v. Walker, 197 Mich. 699, 164 N.W. 420, Ann.Cas.1918E, 1007; Trebilcock v. Anderson, 117 Mich. 39, 75 N.W. 129; Wachsmuth v. Merchants' National Bank, 96 Mich. 426, 56 N.W. 9, 21 L.R.A. 278.'

In 15 M.L.P. Libel and Slander & 22, pp. 411, 412, a number of prior decisions of this Court dealing with the question of privilege in slander and libel cases are cited, and summarized in the following statement:

'An absolutely privileged communication is generally defined as one for which no remedy is provided for damages in a civil action for slander or libel because of...