Zimmerman v. Stahlin

Dethmers, J.

This libel action is a companion ■case to Durant v. Stahlin, 374 Mich 82, in which the opinions of this Court are this day handed down.

Plaintiffs say that they are supporters of Richard Durant, plaintiff in the other suit, and by reason thereof have incurred the antagonism of defendants, who, allegedly, are attempting to oust Durant *95from office in the Republican party' and that, in consequence, defendants in a concerted effort to malign Durant, also set about to malign his supporters, the plaintiffs. Defendant Karl B. Mc-Keehan filed a motion for summary judgment in his favor. The trial court granted the motion. Plaintiffs appeal.

In their unsworn complaint plaintiffs complain of the same document referred to in the Durant Case, designated as exhibit “A”. Here, as in that case,, plaintiffs charge John W. Stahlin with causing it to be published to their injury and damage. As for defendant McKeehan in particular, it is charged in the complaint only that Stahlin, in causing the publication, acted in association with McKeehan and the other defendants; that the defendants, jointly and severally, published the document, caused copies to be sent to the clergy and others, and furnished copies to newspapers.

Defendant McKeehan’s motion for summary judgment was based on the ground that the complaint stated no cause of action against him, that it alleged no active conspiracy, that its allegation that Stahlin, in association with McKeehan and the other defendants, “caused to be published” was a conclusion of law as to defendant McKeehan, not a statement of fact, and that it alleged no overt or other act on McKeehan’s part, either individually or in concert with others. The motion was supported by Mc-Keehan’s affidavit in which he swore that he had not, either directly or indirectly, participated in a plan to prepare or publish the document and that he had not caused it to be prepared or circulated.

Plaintiffs filed an unsworn answer to defendant’s motion, alleging that their action is not based on conspiracy but upon defendants having acted jointly and severally in causing the publication of the document,- that all defendants, including McKeehan, fur*96nished or suggested material contained in the document, and that all knew or should have known of the publication thereof. This answer, not supported by-affidavit or otherwise, concluded with a request that plaintiffs be permitted to file an amendment to their complaint to include the above stated allegations of-their answer to defendant McKeehan’s motion. On the motion to amend the complaint the trial court did not act.

On appeal plaintiffs claim error (1) in the court’s failure to allow the amendment to the complaint, and 42) in granting summary judgment in favor of defendant McKeehan.

Amendment of the complaint in the manner requested would scarcely serve to cause it to state, in nonconclusionary form, a cause of action any more plainly or effectively than is done in the existing ■complaint. Be that as it may, however, such amendment of the complaint would not suffice to supply answer to defendant’s affidavit that he had had nothing to do with exhibit “A”. A defendant’s motion for summary judgment, supported by affidavit that the plaintiff’s case is a sham and that there .are no facts to support the latter’s claims, requires plaintiff to submit to the court, by affidavit, deposition, or other proof, a showing of the existence of issues of facts on the merits of the ease, failing which, plaintiff’s case must fall and defendant is entitled to summary judgment in his favor. The applicable language of G-CR 1963, 117.3 reads:

“Judgment shall be rendered forthwith * * * if the affidavits or other proof show that there is no genuine issue of fact.”

Conversely, a failure to show such issue is equally fatal to plaintiff’s case. As said in 1 Honigman and Hawkins, Michigan Court Rules Annotated, p 363, *97with respéct to supporting and opposing affidavits in connection with motions for summary judgment:

“The plaintiff’s affidavits must contain verification of all the material facts needed to establish a prima facie case. In turn, defendant’s affidavits cannot merely make a general denial of plaintiff’s right to recover nor state factual conclusions, but must state facts with particularity which, if proved at the trial, would create a material issue of fact. This does not mean that the affidavits of either party must be a detailed inventory of every item of evidence he has to support his position, but it does require enough, with sufficient particularity, to show that there is real evidentiary support for the position taken in his pleading.”

Whether or not plaintiffs should have been permitted to amend their complaint is of small moment inasmuch as such amendment would not have supplied the deficiency resulting from plaintiff’s failure to answer by affidavits, or other proofs, defendant’s motion and supporting affidavits which showed defendant’s nonliability and the nonexistence of an issue of fact with respect thereto. Failure of the court to allow the amendment is not, therefore, reason for reversing the summary judgment for defendant under the circumstances of this case.

In discussing the above question, we • have inescapably touched on the second, namely, whether a summary judgment for plaintiff should have been granted. In further treatment of the subject the following should be noted. In Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich 273, 281 (69 ALR 1024), this Court said;

“The summary judgment law does not deprive a defendant of a right to trial by jury if the affidavits present no question of fact.”

On the dual purpose of motions for summary judgment under the new court rules (GCR 1963, 117) *98we find in 1 Honigman and Hawkins, Michigan Court Rules Annotated, p 357, the following:

“The new Rule 117 continues the existing practice and expands summary judgment to include functions formerly performed by (1) a motion to dismiss for failure to state a cause of action and (2) a motion for judgment on the pleadings.
“The committee, supra, gives an extended and lucid explanation of the reasons for thus expanding the rule. In short, it was felt that in former practice these motions tended merely to test the formal adequacy of pleadings, resulting in pro forma amendments to meet the objections raised, thereby forestalling any meaningful inquiry into whether the party whose pleading was objected to had any real .claim or defense. Now by making these functions a part of summary judgment procedure, the genuine.ness of the claim or defense can be more adequately tested. A formal allegation or amendment which is .adequate on its face to meet objections as a matter of law can be exposed as sham by affidavits and other supporting material and summarily disposed of. The procedure thus integrates an effective process of testing first the legal adequacy of a claim or defense and second its genuineness as a matter of fact, in appropriate eases, before incurring the time and expense of á trial on the merits.”

The trial court, in its order for summary judgment for defendant McKeehan, noted that plaintiffs “failed, to file an affidavit of merits”. On argument in this Court, at least in the Durant if not in this case, plaintiff’s counsel made reference to depositions on file which he contended should have been considered in connection with the motions. They Were not called to the trial court’s attention in connection with or ..as ..presenting proofs in opposition to defendants’ motions for summary judgments and -■their supporting affidavits. This apparently was f am good: reason. We have carefully examined the *99countless pages of those depositions, not on file in this case nor quoted or excerpted in the appendix herein, hut filed in the Durant Case. At most they would tend to show a common interest and desire on the part of the several defendants, and a discussion thereof between, in ridding the Republican party of Durant’s power or influence. They utterly fail to tie defendant McKeehan in with the preparation of, arrangements for, or distribution of exhibit “A”. That exhibit and its distribution being the very essence of plaintiffs’ claim of having been libeled, and McKeehan’s sworn denial of having had anything to do with it being entirely unrefuted, the trial court was compelled by rule to grant the summary judgment for defendant.

Affirmed. Costs to defendant McKeehan.

Souris, O’Hara, and Adams, JJ., concurred with Dethmers, J.