ZACHRICH
v.
BOOTH NEWSPAPERS
Docket No. 55712.
Michigan Court of Appeals.
Decided August 25, 1982.Lynch, Gallagher & Lynch, for plaintiffs.
Baker & Selby, for defendants.
Before: M.F. CAVANAGH, P.J., and R.M. MAHER and K.B. GLASER,[*] JJ.
PER CURIAM.
This libel action was tried without a jury and a judgment was entered for defendants. Plaintiffs appeal as of right.
Two issues are raised on appeal. The first centers around plaintiffs' motion for a continuance filed just before the trial started. The complaint was originally filed in July, 1977; the trial started July, 1980. For most of these three years, Bay County Circuit Judge John X. Theiler presided over the case. However, the week that this case was to be heard, District Judge Michael F. Merritt was assigned to hear Judge Theiler's cases and, thus, this case was assigned to him for trial.
Plaintiffs argue that, because District Judge *74 Merritt is from Livingston County and not Bay County, they have been deprived of their right to have a judge elected from their own circuit. This argument was decided against plaintiffs in In re Huff, 352 Mich. 402; 91 NW2d 613 (1958).
The decision of whether or not to grant a continuance is within the trial court's discretion. Moldovan v Allis Chalmers Mfg Co, 83 Mich. App. 373; 268 NW2d 656 (1978), lv den 406 Mich. 916 (1979). Plaintiffs have failed to show any abuse of discretion in the denial of the continuance motion. Assuming plaintiffs waived a jury because they had believed that Judge Theiler would hear the case, the assignment of Judge Merritt, at most, gave them the right to request withdrawal of their jury waiver. However, they never asked for that nor do they now. We find no error in the denial of a continuance.
We turn next to the assertion that the trial judge clearly erred in finding that defendants did not libel plaintiffs. No one disputes that Alvin Zachrich was a public figure at the time in question, and thus, to prevail in a libel suit, malice must be shown. As this Court stated in Johnson v Herald Co, 116 Mich. App. 523, 525-526; 323 NW2d 468 (1982):
"`Actual malice', in the context of a libel action, is a constitutional term of art. Plaintiff may not establish this element by showing that defendant's actions were calculated to make him suffer; rather, he must prove that defendant published the allegedly libelous statements with knowledge of their falsity or with reckless disregard for whether or not the statements were true. New York Times, supra [New York Times Co v Sullivan, 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686; 95 ALR2d 1412 (1964)]. Even where a plaintiff proves that a defendant published a statement `maliciously', the plaintiff may not recover unless he proves that the *75 statement was published with knowledge that it was false or with reckless disregard for the truth. A general allegation of `malice' is insufficient."
The existence of "actual malice" is a question of fact. Weeren v Evening News Ass'n, 379 Mich. 475, 510; 152 NW2d 676 (1967), quoting with approval from Timmis v Bennett, 352 Mich. 355; 89 NW2d 748 (1958). The trial court here found no such malice and we cannot disturb that finding unless it is clearly erroneous. GCR 1963, 517.1. Our review of the record fails to disclose any evidence of the requisite malice and we decline plaintiffs' invitation to infer it. The judgment below is affirmed.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.