Rouch v. Enquirer & News of Battle Creek

457 N.W.2d 74, 184 Mich. App. 19
CourtMichigan Court of Appeals
DecidedJune 4, 1990
DocketDocket 108595
StatusPublished
Cited by5 cases

This text of 457 N.W.2d 74 (Rouch v. Enquirer & News of Battle Creek) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rouch v. Enquirer & News of Battle Creek, 457 N.W.2d 74, 184 Mich. App. 19 (Mich. Ct. App. 1990).

Opinions

Neff, J.

In this libel action, which is based on a news report of plaintiffs arrest published by defen[23]*23dant newspaper on December 22, 1979, defendant appeals as of right from a jury verdict awarding plaintiff $1 million. We affirm.

i

The underlying facts are not in dispute. At the time of publication plaintiff was a single, forty-three-year-old man residing with his two children, Tony and Nick, at 631 Golden Avenue in Battle Creek. He had lived there for some thirteen years and had been employed at Post Cereals-General Foods for some twenty-three years.

On December 20, 1979, plaintiff met his ex-wife, Shannon Mayo, at a lounge after work. After having some drinks, plaintiff and Mayo went to Mayo’s home to feed her children, ages nine and eleven, and to arrange for a baby-sitter. While Mayo changed her clothes, plaintiff picked up the baby-sitter and returned to Mayo’s home. They went out for the evening, ending up at the lounge where they had met after work. After staying at the lounge until 2:30 a.m., December 21, 1979, they went to plaintiff’s home on Golden Avenue where plaintiff’s son Nick was sleeping on the couch. After talking a short while they went to bed.

Sometime later, plaintiff was awakened by Nick who said that the police were at the door. The police officers told plaintiff that they had come to pick him up on a sexual charge of some sort. Plaintiff informed the officers they had the wrong person and, if they would go inside and talk with the lady whom he was with, she would tell them that they had the wrong person. The officers refused to do so and took plaintiff to the Bedford Township Police Department.

There plaintiff repeated the story he had told [24]*24the police officers. Plaintiff was removed to the county jail at about 6:30 a.m., Friday, December 21, 1979, but, about 2:00 p.m., he was released on a personal recognizance bond, on the condition that he appear for arraignment on December 28, 1979. When plaintiff appeared for arraignment, he was told by the court clerk that charges had not been filed and he was free to go. A formal warrant was never issued and, several months later, another person was charged with the offense.

Page B-5 of the December 22, 1979, morning edition of the Enquirer & News of Battle Creek carried the following news article:

A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old women [sic] who was baby-sitting with his children at his ex-wife’s house on North Finlay Avenue in Bedford Township.
The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.
Police said Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim’s clothes off, police said.
The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.
Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.
The charge against Rouch was authorized Friday by the Calhoun County Prosecutor’s office.

Stan Kaufman, ten-year veteran police beat re[25]*25porter for the Enquirer, typed the story after receiving the information by telephone from Bed-ford Township police. It is Kaufman’s practice to make the rounds of the area police departments each day either in person or by telephone.

On November 26, 1980, eleven months following publication, plaintiff for the first time contacted the Enquirer and demanded a retraction within ten days. On December 3, 1980, a retraction was published. On December 5, 1980, plaintiff filed suit alleging that the article concerning plaintiff’s arrest was false and defamatory.

ii

On June 14, 1982, the Calhoun Circuit Court granted the Enquirer’s motion for summary disposition on the ground that a report of an arrest is of general public interest entitling a newspaper to a qualified privilege. Plaintiff appealed to this Court. In Rouch v Enquirer & News of Battle Creek, Michigan, 137 Mich App 39, 47; 357 NW2d 794 (1984), this Court reversed and held that the statutory qualified privilege contained in MCL 600.2911(3); MSA 27A.2911(3) was inapplicable because no warrant was issued and there were no official proceedings.

Defendant appealed to our Supreme Court. In Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 167; 398 NW2d 245 (1986), the Supreme Court agreed with the Court of Appeals that the statute does not apply, but reached that conclusion through a different analysis. The Supreme Court reasoned that an arrest that amounts to no more than an apprehension is not a "proceeding” under the statute. 427 Mich 172-173. Accordingly, the Court concluded that the information which was orally furnished Kaufman did not enjoy the privi[26]*26lege afforded by the “public and official proceedings” statute.

The Supreme Court also adopted the negligence standard of Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974), and held that plaintiff was not required to show malice on the part of defendant. 427 Mich 202-203. Instead, the Court held that a report of an arrest and the facts used to establish the probable cause for that arrest amount to speech of a public concern and that the rule of Philadelphia Newspapers, Inc v Hepps, 475 US 767; 106 S Ct 1558; 89 L Ed 2d 783 (1986), applied. 427 Mich 206. In so holding, the Court stated at 206:

Because of the importance of this type of information in a free society, plaintiffs who choose to bring actions in libel on the basis of such reports must first prove that the statements were false in addition to proving that defendants were negligent in so reporting.

The case was remanded to the trial court for proceedings consistent with our Supreme Court’s opinion.

hi

A

On February 9, 1988, an eight-day trial commenced in circuit court. Plaintiff, his former wife, and his two sons testified to the events occurring on the afternoon and early morning of December 20 and 21, as set forth above.

Plaintiff's expert witness, Clark Mollenhoff, professor of journalism at Washington University, testified over objection that Kaufman was negli[27]*27gent because he did not get the other side of the story. He observed that police evidence is often drawn from irresponsible sources and that good journalism at least requires some follow-up checking on the accuracy of the police report. He stated that there was no time pressure in the instant case and there was time for Kaufman to contact Rouch or other witnesses, including Mayo. He testified that Kaufman was also negligent because he did not attend seminars to learn the methods and standards of investigative reporting. In addition, he testified that the newspaper itself was negligent because the editor approved what Kaufman had written without any substantive changes at all.

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Related

Freed v. Salas
780 N.W.2d 844 (Michigan Court of Appeals, 2009)
Rouch v. Enquirer & News
487 N.W.2d 205 (Michigan Supreme Court, 1992)
Rouch v. Enquirer & News of Battle Creek
457 N.W.2d 74 (Michigan Court of Appeals, 1990)

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457 N.W.2d 74, 184 Mich. App. 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rouch-v-enquirer-news-of-battle-creek-michctapp-1990.