
    KENNEY v. HATFIELD.
    1. Appeal and Error — Nonjury Case — Preponderance op Evidence.
    The Supreme Court does not reverse the judgment of a trial judge who heard a nonjury action at law unless the evidence clearly preponderates to the contrary or unless there were errors of law.
    2. Libel and Slander — Impairment op Mental Faculties.
    Generally a publication imputing impairment of mental faculties is libel per se.
    3. Same — Impairment of Mental Faculties.
    A published advertisement that numerous complaints were said to be on file against plaintiff in a city poliee department “indicating that he had been frightening women and required institutional treatment for mental illness for the protection of himself and society” constituted libel per se, since it imputed an impairment of mental faculties.
    4. Same — Opinions.
    The test of a statement of opinion, involved in an action for libel, is not its absolute truth, for that can never be proven, but rather whether or not under all the circumstances the opinion was one which a reasonable man might hold.
    5. Same — Statements Partly op Fact and Partly op Opinion.
    Proof of the truth of the factual statements contained in an alleged libel, consisting in part statements of fact and in part . • statements of judgment or opinion, carries with it a privilege to make such comment thereon as a reasonable man might make.
    References fob Points in Headnotes
    [1] 3 Am Jur, Appeal and Error § 896.
    
       33 Am Jur, Libel and Slander § 51. Libel and slander: Imputation of mental disorder, impairment of mental faculties, or want of mental capacity, as actionable per se. 66 ALR 1257.
    
       33 Am Jur, Libel and Slander § 117 et seg., § 298.
    
       33 Am Jur, Libel and Slander § 248.
    
       41 Am Jur, Pleading § 293.
    
      6. Same — Frightening Women — Abnormal Conduct — Evidence.
    Evidence showing that plaintiff had repeatedly followed women whom he did not know as they passed on the street at night and en route to and from a nurses’ home and had made day-after-day visits to the particular window of a female bank teller achieved a cumulative effect of frightening other persons and permitted the reasonable inference that such conduct was abnormal, hence, a statement that plaintiff had need of institutionalization for the protection of himself and society was justified.
    7. Same — Truth—Malice.
    Aetion for libel arising from publication of advertisement in newspaper by probate judge, then campaigning for office of circuit judge, that plaintiff, who had been committed to a mental institution by defendant when probate judge, had been in need of institutionalization and treatment because of various facts therein related held, properly dismissed as to all defendants on the ground that the factual allegations were true, the opinion allegations were reasonable and the publication was without maliee.
    8. Same — Qualified Privilege.
    The claim of qualified privilege in a libel aetion is a defense which should be affirmatively pleaded.
    9. Appeal and Error — Questions Beviewable — Libel—Defense of Qualified Privilege — Pleading.
    Issues pertaining to qualified privilege of newspaper publisher and its officers, are not discussed on plaintiff’s appeal in libel action, where such defense was not pleaded and no amendment of pleadings made to include it.
    10. - Pleading — Amendment—Discretion of Court — Surprise.
    Amendment of pleadings rests largely within the discretion of the trial judge, but should not be allowed during trial if they work to the surprise or disadvantage of the opposite party.
    Appeal from Berrien; Andrews (Mark S.), J., presiding.
    Submitted June 7, 1957.
    (Docket No. 38, Calendar No. 47,327.)
    Decided March 6, 1958.
    Be-hearing denied April 14, 1958.
    Case by Edward James Kenney, Jr., against Malcolm K. Hatfield, Bussell Bootbby, James Case and the Palladium Publishing Company for damages arising from libel. Judgment for defendants. Plaintiff appeals.
    Affirmed.
    
      Edward James Kenney, Jr., in propria persona.
    
    
      Alexander, Cholette Buchanan & Conklin (Paul E, Cholette, of counsel), for defendant Hatfield.
    
      Gore db Williams (Charles W. Gore, of counsel),, for defendants Boothby, Case and Palladium Publishing Company.
   Edwards, J.

This is a libel suit between a lawyer on one hand, and a probate judge, a newspaper and 2 executives thereof on the other.

The alleged libel was in the form of a political advertisement authored by the probate judge during-a political campaign when he was running for circuit, judge, and printed in the News Palladium of Benton Harbor. The advertisement was as follows:

' “On my way to the court yesterday morning I had; the 8 o’clock news tuned in over WHFB and heard the broadcast concerning my commitment of Edward j. Ken'ney, Jr., to the State hospital back in 1950.
“Wednesday’s hearing in the Kenny v. Hatfield matter was merely the conclusion of the hearing held last May. It makes colorful campaign material in the circuit judgeship race for the lawyer-trained judge from Kalamazoo again repeated what he had previously said and prefaced his former statement by saying that as he entered Berrien county he was greeted by signs which read: ‘Elect Judge Malcolm Hatfield, Circuit Judge, 50,000 decisions in 22 years1 with only 50 appeals. Experience counts.’
“We are so busy at all times in probate court deciding approximately 4,000 matters a year, that I paidThe $359.75 court costs at the end of the hearing as I do not have the time to take an appeal to the-Supreme Court. Based on all the facts and evidence. as presented to me it is my sincere belief that this man was mentally ill at the time I committed him.
“Judge Sweet did not have the opportunity of hearing the evidence on the case as I did. I understánd .that at that time, I got down to hard facts and was practical in the matter as numerous complaints were said to be on file against Kenney in the Benton Harbor police department indicating that he had been frightening women and required institutional treatment for mental illness for the protection of himself and society.

“paid advertisement”

■ -Plaintiff, who here appears on his own behalf, filed a declaration alleging that the last sentence of the advertisement was false and libelous, and sought $75,000 damages. Defendants by answer admitted the publication but denied the falsity thereof, and pleaded as an affirmative defense that the statement complained of was true. ’ .

At pretrial the issue was phrased thus:

• “The issue is whether or not there were on file on November 18, 1950, in the Benton Harbor police department ‘numerous complaints indicating that the • plaintiff had been frightening women and required institutional treatment for mental illness for the protection of himself . and society.’ ”

Both sides waived a jury trial and this case was tried before a visiting circuit judge;

At trial, during plaintiff’s proofs, the long history of this controversy was laid bare. Though much of it is a story which might be better left unprinted, we know of no way by which we may deal with the issues herein presented without repeating it in these pages.

It appears from this record that on formal petition of a deputy sheriff of Berrien county plaintiff in the instant proceedings, Edward James Kenney, Jr., was committed to the Kalamazoo State hospital after hearing on November 18,1950, in the Berrien county probate court before Judge Malcolm EL Hatfield, one of tbe present defendants. The commitment followed examination by 2 psychiatrists and the filing of certificates from them certifying that plaintiff herein was mentally ill.

Plaintiff was released August 16,1952, presumably on parole. On December 4, 1952, he filed a bill of complaint against Judge Hatfield, seeking to declare void the 1950 commitment,- and to have Judge Hatfield restrained from entering any order for his return to the hospital thereunder.

. This case wa,s ultimately disposed of by a circuit ■court decree which held the 1950 commitment void for failure of the record to show compliance with statutory requirements.

This decree was reported in the News Palladium, and read into this record as follows:

“The next one is dated May 29,1954. The headline is a double-column headline reading: ‘Hatfield Scored in Legal Ruling on Asylum Case.’ The sub-headline reads: ‘1950 Commitment is Tossed out by Kalamazoo Judge.’

(Reading):

“Visiting Circuit Judge Luden B. Sweet Friday of Kalamazoo decreed in Berrien circuit court that Atty. Edward Kenney, Jr., of Benton Harbor was illegally committed to Kalamazoo State mental hospital in 1950.
“Simultaneously the jurist handed down an opinion which sharply criticized Probate Judge Malcolm Hatfield for his handling of Kenney’s case.
“Pointing out that he resides in Kalamazoo and has viewed many similar proceedings during his 7-year tenure on the bench, Judge Sweet commented: ‘Not in my experience have I examined a file in commitment proceedings which failed to meet the requirements as has this one.’
“Kenney, who spent approximately 18 months in the State hospital filed suit in 1952 against Judge Hatfield, Sheriff Erwin H. Kuhath, Michigan mental health commission, and 2 State psychiatrists.
“Contending that he was unlawfully committed, Kenney petitioned to have the proceedings declared void. Moreover, he asked that the defendants be enjoined from sending him back to the hospital and that all records on his commitment be destroyed.
“Judge Sweet issued a permanent restraining order as Kenney requested, hut said it wasn’t within the court’s authority to expunge from the record commitment proceedings.”

It was the proceeding described above which led to defendant Hatfield’s advertisement which is the subject of plaintiff’s present libel action.

With this much background before us, we turn to the police complaints referred to in the advertisement. They were introduced in the course of plaintiff’s case and are reproduced below:

All of the above complaints except tbe last one were introduced in evidence by the plaintiff in tbis case. Tbis record discloses no denial by tbe plaintiff of tbe conduct recited in these complaints. On tbe other band, it does disclose plaintiff’s legal argument which assumes tbe truth of tbe facts disclosed therein, vigorously disclaiming that tbe conduct referred to in the complaints was illegal or that it demonstrated any improper motive on tbe part of plaintiff. Tbe record also contains plaintiff’s testimony pertaining to examinations -by 4 psychiatrists in the year 1950, 2 of whom filed certificates in the commitment proceedings, and 2 of whom examined him at tbe Kalamazoo State hospital immediately after bis admittance and preceding bis 20-month stay there.

Tbe record also discloses that plaintiff bad been in 2 mental institutions prior to 1950 either by voluntary admittance or family placement.

Defendant Hatfield testified that be was familiar with tbe complaints referred to above at tbe time of the 1950 hearing and at tbe time of tbe publication of tbe alleged libel. He also testified that tbe probate court file in relation to tbe Kenney commitment proceedings contained 4 certificates from doctors of good standing in tbe community, and that be was familiar with those certificates. He testified further that be bad the police complaints, contents of tbe Kenney commitment probate court file including tbe medical certificates contained therein, and tbe knowledge of plaintiff’s previous admissions to mental hospitals all in mind at tbe time of tbe publication of tbe alleged libel.

At tbe close of plaintiff’s proofs, the circuit judge hearing tbe case dismissed tbe cause of action as to defendants Bootbby, Case and tbe Palladium Publishing Company on tbe grounds that the falsity of tbe publication complained of bad not been establisted and no malice tad been shown, and further ttat tte publication as to ttese defendants was qualifiedly privileged. He reserved decision on a similar motion by defendant Hatfield. Defendant Hatfield then presented 2 doctors who testified ttat in their opinion, based on tte police complaints and assuming tte facts therein to be true, plaintiff in 1950 tad been mentally ill and required institutionalization and treatment.

At the close of ttese proofs, the circuit judge dismissed tte cause of action as to the defendant Hatfield, too, on tte ground that tte publication complained of was without malice and was true.

We do not, of course, reverse tte judgment of a trial judge tearing a nonjury case unless tte evidence clearly preponderates to tte contrary or unless there were errors of law. Barnes v. Beck, 348 Mich 286; Hayes Construction Co. v. Silverthorn, 343 Mich 421.

We find no serious problem as to construction of tte sentence complained of. In its ordinary sense as ordinary men would read this publication, it constituted a charge ttat in 1950 plaintiff was mentally ill and that tte police complaints referred to so indicated.

It is generally held that a publication imputing impairment of mental faculties is libel per se, and we agree with plaintiff and appellant ttat the publication complained of here is suet. Belknap v. Ball, 83 Mich 583 (11 LRA 72, 21 Am St Rep 622); Taylor v. McDaniels, 139 Okla 262 (281 P 967, 66 ALR 1246, see annotation following, 66 ALR 1257); 33 Am Jur, Libel and Slander, § 51.

On this appeal, however, we deal with a record wherein tte trial judge served as tte finder of tte facts. Tte judge’s opinion said in part “At tte outset, I am satisfied, as a matter of fact, ttat the publication is true.” Tte trial judge then went on to review at some length the circumstances in relation to the circuit court’s criticism of Judge Hatfield and its publication in a news story which called forth the advertisement complained of. He noted that plaintiff in the instant case was likewise the plaintiff in the cause which had brought the criticism of defendant Hatfield and held as a matter of fact that under all the circumstances which had been recited the record revealed justification for, aiid no malice on the part of, the various defendants in occasioning this publication.

The publication complained of was a statement containing both fact and opinion. The fact portion of the statement was to the effect that in 1950 there were numerous police complaints on file indicating that plaintiff had been frightening women. As the quotations from the record indicate, there is ample evidence from which the trial judge could have found that this statement of fact was true.

The opinion portion of the statement was generally to the effect that the complaints referred to indicated a need for institutionalization and treatment for plaintiff. The test of a statement of opinion is not its absolute truth (for such can never be proven), but rather whether or not under all the circumstances the opinion was one which a reasonable man might hold.

“Truth, as a defense, becomes greatly complicated when the defamatory publication consists of statements which are in part statements of fact and in part statements of judgment or opinion. It is said that proof of the truth of the factual statements carries with it a privilege to make such comment thereon as a reasonable man might make. If the comment' is or may be understood as implying the existence of other facts sufficient to justify it, proof of such' facts is necessary to complete the defense of truth.” 1 Harper & James, Torts, .§ 5.20, pp 418,. 419. .. .

See, also, 3 Restatement, Torts, § 582, comment h; 1 Harper & James, Torts, § 5.8.

We note that plaintiff did not present' any medical testimony pertaining to his condition in 1950 to dispute the certificates of mental illness contained in the probate court file which was introduced in evidence in this cause.

Plaintiff and appellant vigorously urges upon us that his conduct in following women on the street whom he did not know, or seeking with deliberation day-after-day the particular window of a particular female bank cashier, was entirely legal and in nowise abnormal. We are not persuaded that it is impossible by repetition of wholly innocent acts to achieve a cumulative effect of frightening other persons. There is evidence in this record from which a deliberate purpose in achieving this effect could be inferred. We cannot say as a matter of law that the trial judge was in error in drawing an inference of abnormality therefrom.

We believe that the record in this case at the close of plaintiff’s proofs contained ample evidence to justify his dismissal of the cause of action as to all defendants on the grounds that the factual allegations were true, the opinion allegations were reasonable, and the publication was without malice. Sultings v. Shakespeare, 46 Mich 408 (41 Am Rep 166); Simons v. Burnham, 102 Mich 189; Noth v. Evening News Association, 338 Mich 359; 33 Am Jur, Libel and Slander, § 117; 1 Harper & James, Torts, § 5.20.

What has been said disposes of all questions which have been presented to us on appeal. We will not pass upon the issues argued to us pertaining to the claim of qualified privilege on the part of defendants Boothby, Case and Palladium Publishing Company. The defense of qualified privilege, if it is to be relied upon, should be affirmatively pleaded. 33 Am Jur, Libel and. Slander, § 248. Although the trial judge indicated midway in the trial that he intended to consider this defense, the record before ns does not'disclose any motion to amend nor any order'granting amendment of defendants’ answers in this regard. Although amendment of pleadings rests ■ largely within the discretion of the trial judge (Honigman, Michigan Court Rules Annotated, Rule 25 [1945]-, p 242), amendments should not be allowed during trial which work to the surprise or disadvantage of the opposite party. Jackson City Bank & Trust Co. v. Blair, 333 Mich 399 (32 ALR2d 920).

Affirmed. Costs to appellees. . .

Dethmers, C. J., and Carr, Kelly, Smith, Black, and Voelker, JJ., concurred.'

Kavanágh, J;, took no part in the decision of this case.  