Weeren v. Evening News Ass'n

• Decision Date: 02 October 1967
• Docket Number: No. 8,8
• Parties: Franz J. WEEREN, Plaintiff and Appellant, v. EVENING NEWS ASSOCIATION, a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 676

152 N.W.2d 676

379 Mich. 475

Franz J. WEEREN, Plaintiff and Appellant, v. EVENING NEWS ASSOCIATION, a Michigan corporation, Defendant and Appellee.

No. 8.

Supreme Court of Michigan.

Oct. 2, 1967.

George L. Downing, of Kelman, Loria, Downing & Schneider, Detroit, for plaintiff and appellant.

Buell Doelle, of Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Detroit, for defendant-appellee.

Before the Entire Bench, except KELLY, J.

BLACK, Justice.

Like the three Durant Cases ¹ this is another tort action where summary action below has divided the Court--hopelessly and inconclusively. Again the rock that trisects the stream of judgment is that importation from the federal system known as accelerated or summary judgment, found in GCR 1963, 116, 117. The supporters of quick and easy riddance of politically troublesome cases will not even recognize--in fact have steadily ignored since Rules 116 and 117 became effective--what seem to be the supremely controlling pilotdirectors of the aforesaid importation, referring specifically to Sonnentheil v. Christian Moerlein Brewing Company, 172 U.S. 401, 19 S.Ct. 233, 43 L.Ed. 492; Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 and United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, all having been relied upon in the prevailing opinion of the first Durant Case (374 Mich. at 88--91, 130 N.W.2d 910), wherein summary judgment was denied. Meanwhile others acknowledging that the four cited federal decisions do All this took place in the same action with all defendants correspondingly charged with a libel of the plaintiff or actionable participation in such libel. ² It must be that Rules 116 and 117 wrought supposedly by and upon the Court's own hammer and anvil, are mighty abstruse when not even 5 Justices can agree upon any dependable guide for application of those rules to actions for tort that are based upon the common law and depend upon testimonial proof and the legal sufficiency of such proof.

exist, were unwilling to apply them to the second and third Durant Cases (see Souris, J., 375 Mich. at 647-650 and at 666, 135 N.W.2d 395 and 408). The curious result was that misfortunate defendants King, Bashara, Merrell and Waldron were held for trial on Denial of summary judgment (374 Mich. 82, 130 N.W.2d 910) while the more favored defendants McKeehan (Zimmerman v. Stahlin, 374 Mich. 93, 130 N.W.2d 915), Van Dusen, Elliott, Romney (375 Mich. 628, 135 N.W.2d 392) and Brucker (375 Mich. 665, 135 N.W.2d 407) were let out on Grant of summary judgment.

Had Professor Rodell been seated here for judgment as the 3 Durant Cases came up, I am sure he would have hatched a cyclic new killy-loo for application of Rules 116 and 117; a legal bird with left and right wings arranged reversibly so that all flight might go round and about rather than just backward. The reference appears in Williams v. City of detroit, 364 Mich. 231, 276, 277, 111 N.W.2d 1, 13. To quote Rodell again:

'The law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn't care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind.' Rodell, 'Woe Unto You Lawyers!', (ch. 2, [379 Mich. 486] p. 23, Reynal & Hitchcock,) p. 20, Pageant Press, Inc., New York City.'

Since submission of this appeal seven of us have seen and heard the telecast 'A Bell for Okinawa.' ³ Contrary to probative opinion reached upon reading the cold print of appendix and briefs, that audiovisual review has brought the writer to definite agreement with defense counsel that the telecast discloses no actionable defamation of plaintiff and that Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369, affirming grant of summary judgment, controls that point as a matter of law. Like the letter written by Mrs. Slater to the State health department, nothing conveyed to eye and ear by the film 'defamed plaintiff within the commonly accepted So much, then, for plaintiff's claim that he is possessed of a cause for defamation. But another question, not answerable by demonstrative or documentary proof alone, remains for due process test of defendant's motion for summary judgment. Such question depends for answer upon that which may indeed be proved but yet is not; referring specifically to defendant's key defense which, under heading 'Affirmative Defenses,' is designated in its answer as paragraph (7). Paragraph 7 reads:

meaning of the word. See 3 Restatement, Torts § 559.' (Souris, J., writing for the majority in Nuyen, p. 662, 127 N.W.2d p. 374).

'(7) Plaintiff, while in Germany, acted to preempt the limelight as a public figure, or a celebrity, or a public personage, and, consequently, he lost his right to privacy, since; (i) he himself sought publicity and consented to it, and so he cannot now complain of such publicity; (ii) has personality and affairs already had become public and these can no longer be regarded as his own private business; and, (iii) television, in common with the press, has a privilege, guaranteed by the United States and Michigan constitutions, to inform the public about those who have become legitimate matters of public interest;'. ⁴

One need but add that the affirmative defense thus pleaded may--if supported by due proof--turn out to be airtight as a matter of law. On that score see the respective opinions of Curtis Publishing Company v. Butts (Associated Press v. Walker), 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, so far as such opinions deal with General Walker's Fully tried case. But the validity of that defense may be rightfully tested only at close of All proofs, and then by motion for an instructed negative verdict as done in both Butts and Walker. As yet it has not received that exact proof-bolster whichever must precede determination of a cause by judicial judgment distinguished from jury verdict.

Upon the procedurally restricted showing now before the Court I hold that plaintiff's cause as pleaded cannot be tested for legal sufficiency until, in the course of a due and complete trial, both parties have submitted proof for and against the proposition that the defendant telecaster actionably invaded his 'right to be let alone' by repeating the telecast after having received from plaintiff the latter's cease and desist letter of May 7, 1958. In such regard we find that plaintiff has alleged in his declaration, and defendant has not denied, that:

'13. Plaintiff immediately, through attorneys, caused a letter to be sent to the defendant requesting that defendant cease and desist from further distribution adn telecast of said film and advising the defendant that said film was false and defamatory and an invasion of his right of privacy.

'14. Notwithstanding receipt by defendant of this letter the defendant did again, recklessly and without the knowledge or consent of plaintiff, telecast said film on or about September 2, 1958.'

Thus far we are referred to nothing, nothing of record at all, which might tend to explain or justify defendant's going on with the second telecast or, possibly, tend to show an 'adequate' investigation, after receipt of the cease and desist letter, upon strength of which defendant may have become immune legally from plaintiff's charge of actionable invasion. There may indeed be such an explanation or justification. Defendant may have investigated to such entent as would satisfy the requirements of acceptable publishing standards. But that we do not yet know and will not know until defendant undertakes its quoted 'In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance, with one minor exception, were internally consistent and would not have seemed unreasonable to one familiar with General Walker's prior publicized statements on the underlying controversy. Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards. We therefore conclude that General Walker should not be entitled to damages from the Associated Press.'

defense; a defense which would seem to require exemptive proof, not allegation, that defendant in proceeding with the second telecast did not depart from such standards. To quote that part of the Court's opinion which, in Curtis Publishing Co. v. Butts, concluded the Walker Case:

With plaintiff's claim of defamation out of this case as a matter of law, the briefed question of privilege--qualified or unqualified--takes on a not yet fully explored aspect of legal substance. Neither of the courts below has considered the question of privilege excepting as it applies in the context of plaintiff's said allegation of defamation. Hence the controlling question on present appeal is whether, as against defendant's motion for summary judgment, ⁵ plaintiff is entitled to that kind of a trial our own Constitution supposedly assures, ⁶ before the trial judge may hear and determine any motion for entry of a negative judgment. I stand for such a trial and therefore vote to reverse this latest order granting summary judgment, the finally assigned merit of which is that there is no 'genuine' issue of fact. As for that abjective 'genuine', see dissenting comment in Coronet Div. Co. v. F.S.W., Inc., 379 Mich. 302, 314, 315, 150 N.W.2d 809.

The trial judge filed two opinions. Each upheld defendant's said motion. In his first opinion the judge declared...