Abrahamsen v. Mountain States Tel. & Tel. Co.

• Decision Date: 13 March 1972
• Docket Number: No. 24562,24562
• Citation: 494 P.2d 1287
• Parties: Martin F. ABRAHAMSEN, Plaintiff in Error, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 1287

494 P.2d 1287

177 Colo. 422

Martin F. ABRAHAMSEN, Plaintiff in Error, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a

corporation, et al., Defendants in Error.

No. 24562.

Supreme Court of Colorado, En Banc.

March 13, 1972.

Rehearings Denied April 10, 1972.

Richard W. Johnston, Aurora, John P. Gately, Denver, for plaintiff in error.

Akolt, Shepherd, Dick & Rovira, Stuart S. Gunckel, T. M. Ledingham, Denver, for defendants in error Mountain States Telephone Company, Jack Egan and Herbert L. Williams.

Madden & Strate, George J. Strate, Denver, for defendants in error Smith-Brooks Printing Co. and Fred Vessels.

White & Steele, Lowell M. Fortune, Denver, for defendant in error Dennis Peterson.

No appearance for defendants in error Charles Sellier and James E. Kempter.

DAY, Justice.

This appeal challenges the propriety of a summary judgment of dismissal of Abrahamsen's claims as plaintiff, alleging that the defendants conspired with each other to falsely charge and accuse plaintiff of the theft of daily addendum lists to the telephone directories of the corporate defendant, Mountain States Telephone and Telegraph Company. All of the defendant denied the allegation.

It is apparent from the record of a hearing on defendants' motion to dismiss and answers to interrogatories by plaintiff that plaintiff's claim involved a claim of libel and conspiracy to libel him through the verification of certain criminal informations by Egan and Peterson And the preparation of telephone company inter-office reports referred to in answers to interrogatories as 'Investigative Reports of the Telephone Company.'

As to the verification of the criminal information, the lower court ruled that summary judgment in favor of defendants was appropriate on the ground of privilege, and the plaintiff does not assign error to that ruling. As to the inter-office reports, however, we think the trial court erred in granting summary judgment in view of the mixed questions of law and fact.

I.

It is well settled that one is entitled to a summary judgment when there are pleadings, affidavits, depositions and admissions on file which show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. O. C. Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628 (1963). The procedural rule is designed to pierce through the allegations of fact in the pleadings. Terrell v. Heller & Co., 165 Colo. 463, 439 P.2d 989 (1968). It can, properly applied, save litigants the expense and time connected with a trial when, as a matter of law based upon admitted facts, one of the parties could not prevail. O. C. Kinney, Inc. v. Paul Hardeman, Inc., Supra. Stated conversely, the material allegations of the nonmoving party's pleadings must be accepted as true even in the face of denial by the moving party's pleadings unless the depositions and admissions on file, together with the affidavits, clearly disclose that there is no genuine issue as to any material fact, and that, as a matter of law, summary judgment should be entered. Parrish v. De Remer, 117 Colo. 256, 187 P.2d 597 (1947). Summary judgment, however, is a drastic remedy. To authorize the granting of a summary judgment, the complete absence of any genuine issue of facts must not only be apparent, but all doubts thereon must be resolved against the moving party. Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552 (1946).

The inter-office reports were not made a part of the record, and consequently, it cannot be determined whether they were libelous. While it appears that the lower court read the reports, it made no ruling that these reports did not contain defamatory statements as a matter of law. Plaintiff asserts that they were defamatory by way of his answer to the interrogatory propounded by defendants noted above. The depositions of the defendants do not disclose any facts directly refuting this assertion. On the record, consequently, plaintiff's assertions must be taken as true. Under the principles regarding the propriety of summary judgment noted above, we conclude, therefore, that an issue existed as to the defamatory character of the reports.

The same result holds with regard to the communication of inter-office memoranda. The prividege is a qualified one and not absolute. It will be lost where the publishers are actuated by express malice. Ling v. Whittemore, 140 Colo. 247, 343 P.2d 1048 (1959). Indeed, in that case the court cited Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 83 P. 131 (1905), which expounds on the rule of qualified privilege of inter-office communications at great length. As was stated in Holloway, the question whether in a particular case a publication is to be deemed privileged (that is, whether the situation of the party making it and the circumstances attending it were such as to rebut the legal inference of malice) is one of law to be determined by the court. However, the existence of malice, the question of good faith on the part of the defendants, and their honest belief in the truth of the statements put forth by them, all are matters of fact which are to be determined exclusively by the jury.

Plaintiff's opportunity to show bad faith can only be through evidence of all the facts and circumstances. Plaintiff, in his deposition, refers to a specific instance where he asserts that Egan encouraged him to acquire the property he was subsequently accused of stealing. Many of the elements of entrapment are in the record as it appears now. So, on the issue of good faith and...