Pettengill v. Booth Newspapers, Inc.

278 N.W.2d 682, 88 Mich. App. 587, 5 Media L. Rep. (BNA) 1326, 1979 Mich. App. LEXIS 2005

• Court: Michigan Court of Appeals
• Decided: February 20, 1979
• Docket: Docket 77-3962
• Status: Published

Opinions

R. B. Burns, P. J.

Plaintiff instituted a libel action against defendant and one John Doe, who was never served, asking for actual and exemplary damages that he allegedly suffered when an item inserted in the classified advertisement section of the Flint Journal, one of defendant’s publications, referred to him by name in a scurrilous and insulting manner. It is undisputed that the item could only have been inserted by one of the employees in the Journal’s composing department, but defendant’s investigation was unable to discover the person responsible.

Plaintiff claims that John Doe acted in a wilful, intentional and malicious manner and that defendant Booth Newspapers, Inc. negligently permitted the publication of the material.

During the pendency of the action, defendant filed two motions for summary judgment, each of which was partially granted. These rulings prevented plaintiff from recovering exemplary damages for the defamatory act of defendant’s unknown employee, but allowed plaintiff’s claim for out-of-pocket damages of $265.

Plaintiff appeals the court ruling denying exemplary damages and we reverse.

Both parties rely on Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974). The Supreme Court declined to extend the rule stated in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), which required public officials to prove that the defamatory falsehood was made with actual malice before a party could recover for such a statement. Gertz held that, when a private person was involved, as long as liability without fault was not imposed, states may define their own standards for compensation for actual injury. However, a state may not permit recovery for punitive damages unless the plaintiff proves knowledge of the falsity or reckless disregard for the truth. The Court stated:

"We need not define 'actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” 418 US 323, 349-350.

Prior to the New York Times case, supra, our Supreme Court in Long v Tribune Printing Co, 107 Mich 207, 215-216; 65 NW 108, 111 (1895) stated:

"Damages for injury to feelings, shame, mortification, mental anxiety, insulted honor, and indignation have always, in this State at least, been regarded as actual damages, and not as exemplary, punitory, or vindictive damages. Scripps v. Reilly, 38 Mich 10. One who has been defamed is entitled to compensation in damages to the extent of his injury, and only to that extent. Confusion arises from the use of terms in this class of cases, and it would be well if the terms 'exemplary damages,’ 'punitory damages,’ and 'vindictive damages’ were omitted from the judicial vocabulary, in this class of cases, at least. The term 'malice,’ in the statement that malice is presumed from the publication of libelous matter, is liable to be misunderstood. Malice, in its ordinary acceptance, means ill will, but in its legal sense it means a wrongful act done voluntarily, without just cause or excuse; and in the use of the term this distinction should be pointed out. The sting of an injury sustained by reason of an act wilfully, recklessly, or negligently done is much greater than if the result of accident or mistake. A publication of defamatory matter, made when the means of ascertaining the truth are easily accessible, and in the absence of extenuating circumstances, or those which tend to excuse the wrong, always aggravates the injury. And in my own view, the very accessibility of the facts tending to show the falsity of the publication gives added force to the accusation. But, however this may be, if it be true that a publisher is liable for the damages actually occasioned, that the injury to feelings is a proper element of damage, and that the sense of injury may be aggravated by the circumstances under which the libel is published, the injury to feelings is not diminished by the fact that the fault or recklessness or negligence is that of a reporter, and not that of the manager. Those circumstances which are calculated to reduce the injury are always allowed to be shown to limit the recovery.”

In defendant’s motion for summary judgment and affidavit it excuses the publication on the basis that the procedure for processing classified advertisements is highly automated and that the libelous matter was inserted by an unknown employee. Defendant did not answer plaintiffs complaint that defendant negligently failed to proofread the newspaper.

We do not think that defendant can hide behind the theory that a "phantom writer” is responsible for its negligence.

In the present case plaintiff alleged that he suffered injury to his reputation, mental suffering, embarrassment and humiliation. He asked for both actual and exemplary damages found to be just and equitable.

His specification of damages listed psychiatric care, $265, and exemplary damage, $499,735. As stated in the Long case, supra, damages for injury to reputation, mental suffering, embarrassment and humiliation should have been listed under actual damages. However, defendant was not misled and the trial judge by proper instructions can protect defendant from "punishment” or "punitive” damages.

Reversed and remanded for trial. Costs to plaintiff.

V. J. Brennan, J., concurred.