Peisner v. Detroit Free Press, Inc.

Peisner v Detroit Free 59 PRESS, PEISNER v THE DETROIT FREE INC 21, 1980, April Docket No. 78-4776. Submitted at Detroit. Decided 3, 1981. applied appeal Leave to March for. brought against and an Balfour Peisner Nora S. Peisner action Press, Heldman, The Detroit Free and Louis Inc. Free Press reporter, arising published by out of a libelous statement counterclaimed, alleging pro- Free Press. Defendants abuse of counterclaim, cess. Plaintiffs moved to dismiss which mo- denied, Wayne appealed tion was Circuit Court. Plaintiffs granted, Appeals leave denial Court of reversed the denial, (1977). App circuit court’s 68 Mich subsequently summary judgment grounds moved for on the reported that the matters true were and that their privileged, granted, Wayne which motion was Circuit appealed. Appeals Court. Plaintiffs The Court of reversed and trial, Following the case remanded [5-7] ^{[3] [2] [4]} [7] [8, ^{[9] [5] [1]} Libel and Relevancy Validity, Constitutional Libel and Libel and slander: what constitutes actual 5 Am Jur 50 Am Jur 50 Am Jur 50 Am Jur 10] 50 Am 50 Am Jur 50 Am Jur within law of libel. 38 ALR3d 272. recoverable for defamation. 13 ALR2d 277. unless retraction is federal constitutional rule constitutional rule show actual malice. 20 28 L malice. 19 ALR3d 1361. 50 Am Jur 22 Am Jur 2dEd Jur construction, slander: slander: 2d, Appeal 2d, 2d, 2d, 2d, 2d, 2d, 885. References 2d, matter aspects Libel and Libel and Libel and Libel and Libel and Slander 2d, Damages Libel and Slander Libel who who requiring public demanded. ALR3d 1249. contained of libel and and Slander 375. is a ALR3d Slander Slander Slander Slander § for Points in Headnotes Error protected by application requiring § public 237. 988. §§ §§ §§ §§ §§ §§ 548, pleadings 358. § official or otherwise within the slander — 452, 455, 457, 238-240. 356, 360, 301, officials and public of statute statute 553. 191. 302. malice, Supreme official 367, restricting recovery affecting privilege limiting damages 550, 458. public figures within federal Court cases. 551. show actual ' App 59 trial, awarding plaintiffs, returned a verdict for Court, Hood, damages, Wayne Harold Circuit and "additional” appeal, alleging trial erred in J. Defendants court malice, allowing instructing on the issue of the containing plaintiffs’ the demand for retrac- a letter to consider tion, published allowing jury by an editorial in the to consider Press, allowing made in defen- statements defendant Free malice, pleadings and in to be considered as evidence dants’ damages, instructing jury and that on the issue of supported damages by and not awarded were excessive evidence. Held: properly jury 1. The trial court instructed actual by proof malice would be shown that defendants wrote or knowledge that the article in with it was disregard for whether it was false or not.

false or with reckless properly 2. trial court allowed the to consider plaintiffs’ demand and defendants’ editorial as evi- retraction tending to show the existence of malice at the time of the dence original publication. Any the trial court’s failure to instruct 3. error occasioned reading the editorial was not actionable and preserved appeal, plaintiffs’ theory of the case was not for no having during objection been raised trial and no manifest having injustice been shown. allowing plaintiffs’ 4. The trial court erred in counsel to argue regarding pleadings, statements made in defendants’ but light presented the error was harmless in of other evidence argument. prior to 5. The combined effect of the trial court’s instructions damages Compensation exemplary resulted in error. actual and exemplary types injury normally associated with was authorized the instruction on but does not consti- 6. The award of was excessive grounds tute for reversal. Brennan, P.J., note that since

V. J. concurred. He would permit not the term should be does legal parlance, especially instructions eliminated from appellate review. where its use can lead to confusion and invite J., only. Bronson, concurs the result liability, reversed and remanded as to dam- Affirmed as ages. Detroit Peisner v Free Press op

Opinion the Court — 1. Libel Malice. and Slander writing malice in a libel Actual case is shown where or publication knowledge is with that it is false or with a reckless disregard as to whether it is false or not. Privilege — — — 2. Libel and Slander Malice Evi- Publish dence. original Malice in a libel case must exist at the time of the qualified privilege publish, libelous to overcome a writings publications and evidence of of a libel which a subsequent defendant made to the libel is admissible to original publica- show the existence of malice at the time of the tion. Appeal Preserving — 3. Question. during preserved A claim of an appeal error made trial object alleged during a defendant’s failure to to the error request trial or to a curative instruction where manifest injustice results. Pleadings Privilege. — — 4. Libel and Slander pleadings privileged Statements made in are and cannot form the basis for a libel action. Damages — — op — 5. Libel and Slander Notice Retraction Libel — Statutes. plaintiff A in an may action based on libel or slander recover only damages respect property, suffered in to his busi- ness, trade, profession, occupation, feelings; exemplary or and punitive damages may plaintiff, be recovered where a prior action, instituting gives an notice to the defendant to publish a retraction and allows a reasonable time therefor (MCL600.2911[2]; 27A.2911[2]). MSA op — — — 6. Libel and Slander Good Faith Retraction Libel Mitigation Damages — Statutes. Evidence of a retraction or correction in a libel good action is admissible to show a defendant’s faith and in mitigation punitive exemplary damages and reduction of or (MCL600.2911[2][b]; 27A.2911[2][b]). MSA — — op op 7. Libel and Slander Libel Retraction Nature Retrac- — Mitigation op Damages — — tions Good Faith Statutes. A type, retraction of a libel shall be same size in editions, and, practicable, substantially the same as far as position the same as the libel to be considered on the good mitigation faith of a defendant and in Opinion of the Court (MCL exemplary reduction or 600.291l[2][b]; 27A.2911[2][b]). MSA Damages Exemplary Damages. — 8. or Punitive

Exemplary punitive damages Michigan are recoverable in plaintiff punishment compensation to a and not as of a defen- dant. Damages Damage Feelings — — — 9. Libel and Slander Statutes. plaintiff respect Actual which a has suffered in to his feelings, anguish, pleasures, such as mental denial of social embarrassment, ridicule, humiliation, mortification, or fear are (MCL compensable 600.2911[2][a]; in defamation cases MSA 27A.2911[2][a]). Brennan, V. J. P.J.

Concurrence Damages Damages Jury — — 10. Punitive Instructions. Damages purpose cannot be recovered in defendant; thus, punishing "punitive damages” the term instructions, used, especially should not be where it can appellate lead to confusion and review. propria persona Peisner,

Balfour and for plaintiff Nora S. Peisner. Murray,

Brownson for defendants. P.J., Before: V. J. Brennan, Bronson JJ. Deming,* H. E. Peisner, H. E. J. Plaintiff Balfour Deming, attorney, complaint against Detroit filed a defen- reporter dants Detroit Free Press and Free Press Louis Heldman on December seeking 10, 1973, joined wife, Peisner, for libel. His S. Nora complaint with a derivative claim. The basis for the action was an article written Heldman appeared in the Free Press on November charged plaintiff 20, 1973. The article Balfour inadequate representation Peisner with of an indi- judge, sitting Appeals by assignment. * Circuit on the Court of Detroit Free Press Peisner v Opinion of the Court appellate proceedings gent criminal defendant Plaintiffs claimed that and with unethical conduct. repeated 1, 1973, Free in a December the libel was editorial. Press January 1974, filed a counter defendants

On plaintiffs. alleging process by Plain claim abuse tiffs filed a motion to dismiss the counterclaim trial court. Plaintiffs which was denied prevailed interlocutory appeal to this Court an and the counterclaim was dismissed. Peisner Press, Inc, 360; 242 Detroit Free 399 Mich 825 lv den NW2d 14, 1977, defendants filed a motion for On June judgment claiming complaint summary a cause of action and that there was failed state genuine no fact matters re- issue of because the ported in the article and editorial were true and privileged. publication was The trial court their granted plaintiffs appealed to the motion and this reversed and remanded the case for Court which panel opinion, In its stated that defen- trial. qualified privilege publish dants had a which could article be overcome showing summary judg- of actual and that malice improper plaintiffs’ pleadings ment was because raised an issue of fact as to the existence of Inc, Press, malice. Peisner v Detroit Free (1978).1 App 153; 266 NW2d Sep- finally proceeded trial, and, The case 15, 1978, tember returned a verdict against Plaintiff defendants. Balfour Peisner $100,000 $52,000 awarded damages. $5,- "additional” His wife was awarded jointly 000 actual Defendants were held severally liable for the actual while Free was held defendant liable opinion. 1 A detailed statement of facts is contained in this App 64 104 Mich 59 Opinion op the Court post-trial additional Defendants’ motion for a new trial and/or remittitur was denied. appeal right. Defendants now as of argue first that the trial court erred refusing jury that, to instruct in order to plaintiffs required malice, show were to establish that defendants acted with ill will and intended to injure plaintiff by means of a falsehood. We dis- agree. The was instructed that actual malice by proof would be shown that defendants wrote or question knowledge the article in with disregard it was false or with reckless whether it was false or not. This instruction con- forms to the definition of actual malice set forth by Supreme the United States Court in New York Sullivan, Times v 376 254; US 84 710; S Ct 11 L (1964). type Ed 2d 686 While the of definition support advocated defendants finds some e.g., Vaughan, law, see, Powers v 312 (1945), 297; Mich disputed 20 NW2d 196 we believe that the properly rejected instruction was because it disregard” would have eliminated the "reckless segment of the New York Times definition. accepted New York Times standard has been Michigan Supreme Court. Stahlin, Arber v 382 (1969), Wynn 300; Mich 170 NW2d 45 Cole, (1979). Mich 517; 284 NW2d 144 Next, defendants claim that the trial court erred allowing to consider a letter in which plaintiffs charges demanded retraction of the 1, December editorial as evidence of malice. The malice must exist at the time of the publication, libelous and the present case was so instructed. Times, New York supra. publications Statements or of a libel which subsequent a defendant has made to the one com- plained of have been held admissible as evidence Detroit Free Press Peisner v Opinion Court

tending to show the existence of malice at the time original publication. Sessions, Thibault v Hubbell, 279; Mich 59 NW Smith v 106 NW 547 We find that the demand and editorial were relevant and retraction as to whether admissible publishing defendants acted with malice original article. improp- claim that the was also

erly allowed to the editorial as actionable consider presence judge, in the of itself. The trial outside jury, interpreted decision in Peis- the this Court’s supra, App holding ner, the that could not be the basis of a cause of editorial itself jury, specifically however, never action. The was instructed that the editorial was not actionable. The indicate that the trial court’s instructions did publication question the arti- cle: "Now, charge I you, jury, Members of the that in this this article in on November publishing case in

20th, 1973, enjoyed the Defendants what we call a qualified privilege, press since under the law the does enjoy qualified privilege precludes recovery for reports a claimed libel which is based the of public interests, matters of unless the Plaintiff estab- lishes that the Defendants an untruth [sic] report knowledge falsity with of its or with a reckless disregard Now, charging of the truth. I am hold I that the article you, jury, complained Members of the of added.) defamatory.” in this case is (Emphasis judge theory read each to side’s case jury. plaintiffs’ theory the Included in was the claim that the editorial was and caused libelous plaintiffs. injury to claim that the Defendants now reading theory, coupled of failure of this with the judge to instruct the editorial App 104 Mich op Opinion the Court damage actionable, was not resulted award part based in the editorial. object reading plain not Defendants did tiffs’ theory requested and never an instruction that the editorial was not Under actionable. these any preserved appeal circumstances, only error was injustice. if it resulted manifest Earle v Co, Colonial Theater 266 NW2d lv den Mich 816 We do not injustice present believe manifest occurred repeat specific case. The editorial did not allegations professional contained misconduct although article, it Bar called for a Association plaintiff review of Balfour Peisner’s conduct determine if an ethical violation occurred. It is unlikely finding liability that the based its Furthermore, on the editorial. planned trial court had give requested by plain an instruction tiffs which contained the rial was not actionable. instruction was withdrawn statement the edito proposed

However, following a defense objection to the failure of the instruction to state requisite that the malice at had to exist the time original publication. of the During argument, closing plaintiffs’ attorney portion pleadings read aloud a of defendants’ in the of truth which defense claimed. was Defense objection request counsel’s for a was and his overruled pleadings instruction that the could not be considered as evidence of malice was denied. In post-trial argued motion, the defendants that pleadings privileged were and thus inadmissible. argue pleadings Defendants now were privileged and that the assertion of truth therein improperly used as evidence of malice. Cases by Hartung relied on Shaw, defendants include v (1902), 130 Mich 177; 89 NW 701 and Bennett v Attorney General, 65 203; 237 NW2d v Detroit Free Peisner Opinion of the Court (1975), in made held that statements which privileged pleadings the basis and cannot form are Condi- In Air action. Sanders Leeson a libel tioning Corp, 108 NW2d pleadings, made held that statements the Court absolutely case, are to the issues of a if relevant privileged. cases, hold that the on these we Based allowing plaintiffs’ judge by to counsel erred trial argument on defendants’ claim of based make give requested failing instruc- to truth and However, this error was harm- find that tion. we due to the evidence of GCR 529.1 less under presented had been to be- malice which argument disputed in- was made. This fore the the editorial defen- cluded the anything to Free Press and its refusal retract dant although plaintiffs original article, had pointed in a letter which out demanded retraction plaintiffs specific allegations in the article which false. claimed were concerning pro- raise issues two argue damage they

priety First, award. improperly authorized the trial court’s instructions multiple for the same to award "feelings”. injury plaintiff Balfour Peisner’s part on MCL instructions were based 27A.291K2), 600.2911(2); provides: MSA which "(a) (b), Except provided actions based plaintiff libel or slander is entitled to recover respect he has suffered in business, trade, profession, occupation, property, to his feelings. "(b) not Exemplary shall be plaintiff, in actions for unless the before recovered libel action, instituting gives notice to the defendant his publish so, time do a retraction and allows reasonable shall be proof and or correction Opinion op the Court of admissible evidence under denial on the defendant, good mitigation faith and in exemplary punitive damages. or reduction of re- traction shall be same editions and in the same size type, in the

as far practicable, substantially as position as the same libel.” In Michigan, punitive or exemplary damages are compensation recoverable plaintiff, as not as Kewin Massachu punishment of the defendant. Co, setts Mutual Life Ins NW2d The Supreme Court stated: precedent "Our review of the indicates that those permit recovery which of exemplary damages cases as an element involve tortious conduct on the * * * part of the defendant. An of exemplary award proper if compensates plain- considered it 'humiliation, tiff outrage, indignity’ sense resulting injuries 'maliciously, willfully from and wan- * * * tonly’ these cases is that inflicted the defendant. The theory of

the reprehensibility of the defen- dant’s conduct the the intensifies the injury justifies both exemplary damages compensation award of Id., plaintiffs feelings.” done

harm 419. (b) of Part the statute quoted above does not alter the common governing law rules exemplary punitive damages, it merely when states such damages can be awarded in libel actions. present

The trial court gave the case following or punitive instructions exemplary damages: "Now, jury, Members statute I just quoted have mentions Now, under any our I possible law—and want correct misimpressions purpose our law the of these —under [sic] 'punitive damages’ for their misdeeds. The purpose of these punish is not to the Defendant

damages, Detroit Free Peisner v op Opinion the Court prefer which I than damages to refer to as additional rather punitive damages, compensate plaintiffs is to the injuries by for suffered them because of the Defendants’ actions. charge you, although "I the focus is injuries,

Plaintiff’s measuring these additional exemplary damages, the focus is on the Defendant’s actions determining if these damages additional should be awarded. long position "It has been the of the Courts of Michi- gan sting of greater libel will be much when the Defendants have knowledge acted with either material, falsity of the or with a disregard reckless the truth. injury greater Since the is because [sic] actions, Defendant’s cover the Plaintiffs are entitled to re- greater damages damages. than the actual And this is as damages, what this which I referred to damages additional means. you Plaintiff, "If also decide that Peisner, Mr. is

entitled to what I have labeled additional damages publishers bacause the sorry. of the —I’m Because the publisher knew that the facts were false or because the article was disregard with a reckless truth, you then may award damages additional to the Peisner, Plaintiff allowed much dants have and these damages additional are compensate him sting because the of libel is greater greater made much when the Defen- —it’s knowledge acted with falsity. may "You estimate such additional in order fairly to such called compensate the Plaintiff for purposes damages. said, additional although As I they’re punitive, punish it’s not to the Defendants.” basically These instructions were correct; however, specific types was not informed of awarding to consider in the additional significant The omission is in view of the following given damages: instructions

"Now, you if decide that the Plaintiff husband is n 104 Opinion of the Court damages, your it duty entitled to to determine the money reasonably, fairly which amount of quately and ade- compensates him for each of the elements of damage tion, you publica- decide has resulted from the which the Defendant. You include should each of the following damage you items which decide have been time, present sustained the Plaintiff to the they include: "The actual Plaintiff has suffered business, trade, respect property occupation to his or feelings, anguish, his mental his denial of social embarrassment, ridicule,

pleasures enjoyment, his humilation, mortiñcation or fear. You may also include damage any you of those elements of determine reasonably that the Plaintiff is certain to sustain in the future. "Now, which, any, damage if of those elements of has proved you you is But

been to decide. have to decide upon speculation, that based upon guess evidence and not not upon conjecture. and not The amount of money to be awarded for certain of these elements of damage anguish, plea- as: mental denial of social —such sures, embarrassment, mortification and ridicule things like that —the amount of money awarded for proved those precise elements can’t be in a dollar your amount. The law leaves both amounts to sound judgment. your solely compen- But verdict must be punish sate the Plaintiff for his and not to added.) (Emphasis Defendants.” These instructions damages, standing actual alone, were not improper. The of types injury emphasized in the quoted portion of the instruc- tions are compensable in defa- Co, Long v Tribune cases, mation Printing v Booth 207; (1895), 65 NW 108 Pettengill Inc, Newspapers, NW2d 682 "feelings” fall under may term (a) part libel-damages statute.

The error re- perceive we the instant cases sults from the combined effect of the instructions Detroit Peisner Free Brennan, V. J. P.J. Concurrence exemplary damages. Compensation

on actual and types injury normally part exemplary damages, including outrage "humiliation, sense of indignity”, was authorized the instruction actual-damages on actual If the instruc- correctly exemplary followed, tion was the punishment dam- ages awarded were a form of which is permitted not in this state. also claim supported by

awarded were excessive and not judge evidence. The trial for denied a defense motion although acknowledged remittitur, he that the judgment possibly largest judgment libel Michigan history. opinion While we are of the damage excessive, award was we do not ground. base our reversal on that Plaintiff Balfour Peisner’s claim that he is enti- tled to costs because the defendants failed to file a proper statement of facts is denied. jury’s finding liability affirmed, but

damage award is set aside and the case remanded damages only. for a new trial on the issue of having prevailed costs, No neither side in full. only. J., concurs in the result Bronson, (concurring). V. J. P.J. I concur in Brennan, opinion separately express above write to my recurring concern with the confusion that "punitive” arises over instructions on and "exem- plary” damages. appears While it often interchangeably, two terms are used there a is legal significance goes beyond real, mere Legally, damages semantics. the focus of the two damages solely different. Punitive are awarded punish example or to make an of a defendant because of the malice or recklessness with which Exemplary damages he acted. are awarded for App Mich 72 104 59 Brennan, V. J. P.J. Concurrence feelings injury indignity for the sense of plaintiff suffered a because of and humiliation injury maliciously wantonly In inflicted. other "punitive” upon "punishing” words, focus "exemplary” damages a defendant and focus "compensating” plaintiff. Corp American Central App Lines, 103 v Stevens Van Mich 303 NW2d (1980), App Co, v Sun 89 234 Wronski Oil Mich (1979), 27; 279 564 lv 407 Mich 863 NW2d den (1979), Ray Detroit, 702, 704; 67 v Mich den 397 NW2d lv Michigan Supreme recently As the Court most only exemplary reaffirmed, which are Damages compensatory in nature are allowed. purpose punishing

cannot be recovered defendant. Kewin Massachusetts Mutual Life Ins Co, (1980), Ray, 401, 419; NW2d supra. permit punitive

Since does not dam- ages, legal the term should eliminated from be our parlance. Jury given instructions, such as those "punitive case, which use the term instant damages”, disclaiming while at the same time given "punish” defendant, can be to. inevitably will lead confusion and invite appellate review.

Case Details

Case Name: Peisner v. Detroit Free Press, Inc.

Court Name: Michigan Court of Appeals

Date Published: Mar 3, 1981

Citation: 304 N.W.2d 814

Docket Number: Docket 78-4776

Court Abbreviation: Mich. Ct. App.