Klahr v. Winterble

• Decision Date: 30 September 1966
• Docket Number: No. 2,CA-CIV,2
• Parties: Gary Peter KLAHR, Appellant, v. Peter WINTERBLE, Sherman Miller and Jane Doe Miller, his wife, Appellees. 208.
• Court: Arizona Court of Appeals

Page 404

418 P.2d 404

4 Ariz.App. 158

Gary Peter KLAHR, Appellant, v. Peter WINTERBLE, Sherman Miller and Jane Doe Miller, his wife, Appellees.

No. 2 CA-CIV 208.

Court of Appeals of Arizona.

Sept. 30, 1966.

Rehearing Denied Nov. 23, 1966.

Robert J. Hirsh, Tucson, for appellant.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by Thomas A. Zlaket, Tucson, for appellees.

MOLLOY, Judge.

This is an appeal from summary judgment entered against the plaintiff in a libel action. Plaintiff was a third year student at the College of Law at the University of Arizona and a duly elected member of the Student Senate of the University. This action was initiated by the plaintiff against the student editor and the faculty advisor of a publication of the associated students of the University of Arizona called the Wildcat.

Action was brought on the basis of an editorial which appeared in the November 8, 1963, Wildcat. The editorial recited:

'Senator Gary Peter Klahr, the campus demagogue, is now hissing in another pit, we see.

'His latest distribe was at Tuesday's Senate appropriations board meeting. Klahr was elected to it last years as the final member, a gift of newly elected Student Senators who knew no better.

'Tuesday he exposed a childish threat to attempt to hamstring the Wildcat by taking away its student subsidy.

For the reader's information, that subsidy amounts to about one-fifth of one cent per copy of the Wildcat.

'Klahr's latest demagoguery shows he means that if the Wildcat won't play ball with him and his ideas, that he wants no Wildcat.

'History proves that this is a dictator's first move. Stalin, Hitler, and Mussolini first killed the free press to substitute a lackey press of their own.

'Going along with that, Gary Peter Klahr has introduced a bill calling for a Senate Newsleter. Sound familiar? Well, he also wants to have editorial comment in that Newsletter.

'He has often claimed that he has nothing but the interests of the dear old student body at heart.

'As he did his undergraduate work at Tempe, we can hardly believe that he really means it down to the bottom of his genius.

'He has managed to confound, confuse and overwhelm other Senators, largely by his 1,000-word-a-minute delivery. Even stalwarts throw up their hands, saying, 'enough, I agree,' just to get him to stop, stop, stop.

'Some persons say that the Senator was a child prodigy.

'We have nothing against prodigies; maybe all Klahr needs is a bigger Mechano Set, but we're against buying him one.

'The worst threat that this junior-grade demagogue poses is that by his gestures and screaming, he might outlast and so disguest real Senators that student government would crash down around our ears.

'His ramblings and exhortations about the Wildcat and 'the Administration' are but a continuation of his desire to see his name bandied about as a troublemaker and a fanatic.

'Both of which he is.

'By the way, Senator Klahr, which side of the stands are you planning to sit on at the Tempe game?

'OR DO YOU WANT TO TAKE AWAY THE ATHLETIC SUBSIDY, TOO?'

Judgment was rendered for the defendants on the basis of the pleadings, dspositions and the affidavits before the trial court under Rule 56(c), Rules of Civil Procedure, 16 A.R.S. Such a judgment can be rendered only when there is no genuine issue as to any material fact. When there is the 'slightest doubt' as to the material facts, the litigants are entitled to a full trial. Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 362, 368 P.2d 317 (1962). The complaint filed herein was in two counts. The first count quoted the editorial in haec verba, as above, and alleged '(t)hat the aforesaid words are false, defamatory and libelous per se and that such words were published by the defendants maliciously, knowing them to be false and defamatory.' The complaint asks for $5,000 in compensatory damages and $25,000 in punitive damages. Count II, praying for the same damage, incorporates all of the allegations of Count I and thereafter selects portions of the editorial in question as being libelous. Allegations of innuendo are made as to the portions so selected. Because of the importance of these allegations to the determinations here reached, we quote the various allegations of this portion of the complaint:

Count II

II

'That a portion of the words published, to-wit: 'Senator Gary Peter Klahr, the campus demagogue * * *' conveys and intends to convey to all readers of the aforesaid publication that plaintiff is an unprincipled, factious orator who acquires influence with the populace by pandering to their prejudices or playing on their ignorance.

III

'That a portion of the words published, to-wit: 'Senator Gary Peter Klahr, the campus demagogue, is now hissing in another pit, we see.', conveys and intends to convey to all readers of the aforesaid publication that plaintiff is on par and no better than a venomous or repulsive snake, and a person having the characteristics thereof, viz., malicious, deceitful and treacherous.

IV

'That a portion of the words published, to-wit: 'History proves that this is a dictator's first move. Stalin, Hitler and Mussolini first killed the free press to substitute a lackey press of their own.

"Going along with that, Gary Peter Klahr has introduced a bill calling for a Senate Newsletter. Sound familiar? Well, he also wants to have editorial comment in that Newsletter.', conveys and intens to convey to all readers of the aforesaid publication that plaintiff acts similar to and has the odious characteristics of three of the most infamous villains of all time, viz., Hitler, Stalin and Mussolini and that plaintiff's conduct is on par therewith.

V

'That a portion of the words published, to-wit: 'We have nothing against prodigies; maybe all Klahr needs is a bigger Mechano Set, but we're against buying him one.', conveys and intends to convey to all readers of the aforesaid publication that plaintiff is immature and incompetent and conducts himself in a fashion that would not install respect and confidence in his actions.

VI

'That a portion of the words published, to-wit: 'The worst threat that this junior-grade demagogue poses is that by his gestures and screaming, he might outlast and so disgust real Senators that student government would crash down around our ears.', conveys and intends to convey to all readers of the aforesaid publication that plaintiff is an unprincipled factious orator of low caliber and acts in manner disgusting and obnoxious to other people.

VII

'That a portion of the words published, to wit-: 'His ramblings and exhortations about the Wildcat and 'the Administration' are but a continuation of his desire to see his name bandied about as a troublemaker and a fanatic.', 'Both of which he is.', conveys and intends to convey to all readers of the aforesaid publication that plaintiff is a bigoted individual who indulges in wild and extravagant notions causing grief, affliction, annoyance and pain to others.'

In ruling upon the motion for summary judgment, the trial court had before it the depositions of the student who was the president of the student body at the University of Arizona at the time of the publication in question and of two student members of the staff of the Wildcat. In addition, the court had the answers submitted by the defendants to interrogatories propounded to them by the plaintiff under Rule 33, Rules of Civil Procedure, and the affidavits of the plaintiff and the defendants which were submitted in connection with the motion for summary judgment and the opposition filed thereto.

The defendants in support of their motion submitted duplicate affidavits which read as follows:

'That at the time of publishing said editorial, he truly and honestly believed the content thereof to be true; and further, that he still does believe it to be true;

'That this belief was based upon familiarity with the activities of the plaintiff, Gary Peter Klahr, as a student senator;

'That the affiant was well enough acquainted with the activities of Gary Peter Klahr, as a student senator, to have formed a good-faith belief as to the honesty and truthfulness of the editorial and the statements therein; that he did, in fact, form a good-faith belief that the editorial referred to above was true and correct;

'That he did not deliberately cause the editorial to be published with knowledge that the assertions therein, or any part of them, were false; but on the contrary, with good faith that they were true.'

In opposition, the plaintiff filed the following affidavit:

'GARY PETER KLAHR, being first duly sworn upon his oath, deposes and says:

'That he is the Plaintiff in the above entitled and numbered action;

'That he incorporates by reference herein as if fully set forth the Complaint which he filed in the above entitled action;

'That the allegations in his said Complaint are true of his own knowledge;

'That the said editorial entitled 'An Editorial 'The Demagogue from Tempe" which was published in the Arizona Wildcat, on or about November 8, 1963, is false in all material respects;

'That there were absolutely no grounds for the publication of said editorial or for the Defendants WINTERBLE and MILLER to believe said editorial, or any material part thereof, was true;

'That said Defendants, and each of them, knew that it was false and/or published it in reckless, wanton or malicious disregard of whether it was true or false, and in reckless, wanton or malicious disregard of the consequences to your Affiant;

'That Defendants, and each of them, did not act in good faith in publishing said editorial, but instead acted recklessly, wantonly and maliciously;

'That no factual basis existed for the charges made as published or which would or could have led said Defendants, or either of them, to believe that they were true;

'That neither of said Defendants conducted any investigation to ascertain the truth or falsity of the very serious and defamatory charges they were...