Arant v. Jaffe
| Decision Date | 20 December 1968 |
| Docket Number | No. 17186,17186 |
| Citation | 436 S.W.2d 169 |
| Parties | A. Harvey ARANT and Lylla Arant, Appellants, v. Irvin J. JAFFE, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Barnett M. Goodstein and Wade Starr, Dallas, for appellants.
Byron L. Williams, of Lyne, Klein & French, Dallas, for appellee.
A. Harvey Arant and wife Lylla brought this action against Irvin J . Jaffe alleging that Jaffe had uttered certain false and defamatory statements concerning Mrs. Arant and that as a result thereof damages had been sustained for which recovery was sought. Jaffe answered with a general denial and special defenses including, inter alia, that of qualified privilege. Jaffe, in due time, filed his motion for summary judgment, supported by depositions and request for admissions of fact. Plaintiffs filed their answer to the motion but tendered no additional affidavits, depositions, or other summary judgment evidence in opposition to same. The trial court, following hearing, sustained the motion for summary judgment and thereafter entered a take nothing judgment denying plaintiffs any recovery. Plaintiffs appeal. We affirm.
The summary judgment evidence, viewed in a light most favorable to appellants, may be summarized as follows:
Prior to April 6, 1965 appellee Jaffe and his wife had arranged to purchase a residence in the City of Dallas known as 5130 Southbrook Street from Mrs. Ruth Ann Lively. Mrs. Lively conveyed such property to Jaffe and wife by warranty deed on April 6, 1965. It had originally been contemplated by the parties that Mrs. Lively would vacate the premises on April 15, 1965 but due to the fact that Mrs. Lively's new home had not been completed appellee Jaffe voluntarily, and without any consideration therefor, allowed Mrs. Lively to remain on the premises until her new home was completed and she vacated the Southbrook property. About a week before Mrs. Lively moved out of the Southbrook residence she called Mrs. Jaffe and asked her if it would be all right for her to hold a 'garage sale' on the premises on the following weekend so that she might sell a few of her personal belongings. Consent was given to Mrs. Lively, without consideration paid or to be paid, for permission to hold the sale. Prior to that time Mrs. Lively had entered into an arrangement with Mrs. Arant to assist her in holding the sale, Mrs. Arant having held several such sales in Dallas. This arrangement between Mrs. Lively and Mrs. Arant was not communicated to Mrs. Jaffe or to Mr. Jaffe. On Wednesday, April 28, 1965, Mrs. Lively vacated the house, removing therefrom all of her furniture and personal belongings except those she planned to sell in the garage sale. Immediately thereafter, Mrs . Arant began moving other furniture and merchandise into the residence for the sale to be held on the weekend. Among the items moved into the residence by Mrs. Arant were some 620 items of merchandise and furniture, not including clothing, belonging to some fourteen private individuals. In addition to this Mrs. Arant moved in some twenty-five to thirty pieces of furniture obtained from shops in the Decorator Center. Mrs. Lively testified that when she made arrangements with Mrs. Arant to help her hold the sale she was not aware that Mrs. Arant had contemplated putting such a large amount of merchandise in the house. She said when she observed the number of items placed in the residence she became 'perturbed'.
Mrs. Arant first saw appellee Jaffe when he came to the residence at about 2:00 p.m. on Wednesday, April 28, 1965. She knew that Mr. Jaffe owned the property. She said that she did not know what arrangements had been made between Mrs. Lively and appellee Jaffe with regard to the garage sale prior to the time she moved the merchandise into the house. When Jaffe arrived on the premises he was 'very pleasant' but evidenced surprise at seeing so much merchandise in the house. He commented: At that time Jaffe made no express objection to the sale. The following day Jaffe's wife arrived on the premises and was disturbed concerning a leak in the utility room, and upset because a dog had torn up the patio. During the evening of Thursday, April 29, 1965 a friend of Mrs. Arant's, who had been helping her prepare for the sale, drove his automobile over the curbing of the driveway and onto the lawn. At about eleven or twelve o'clock on Friday, April 30, 1965, Jaffe telephoned Mrs. Arant at the Southbrook residence and told her he wanted the sale stopped immediately. When Mrs. Arant asked Jaffe why he wanted to stop the sale he stated that he did not want to discuss it, and wanted no argument, but did want the sale stopped and wanted Mrs. Arant and her associates off of his property. She asked Jaffe to stop by the house on the way home so that she could explain her position, whereupon he said that he would be out within the hour.
Shortly thereafter Jaffe arrived at the residence. Mrs. Arant had not stopped the sale and it was still in progress when he arrived. When Jaffe came in the front door Mrs. Arant said she was standing in the middle of the living room, and appellee said: Mrs. Arant told Jaffe that his secretary had telephoned and left word for him to call his office. As Jaffe walked to the telephone to make his call he said: 'I just want to say one more time that you are a phony, cheat and a crook and I want you off my property by midnight tonight.' After Jaffe finished his phone call Mrs. Arant asked him if he would go with her to another room where they could talk. The two retired into a bedroom where Mrs. Arant tried to convince Jaffe to allow the sale to continue. Jaffe insisted upon her leaving and stated: 'If you are not off my property by twelve o'clock tonight, I will have you put off and I will have every bit of merchandise in this house locked in and you won't get a piece of it out.' Mrs. Arant replied: 'I have heard this twelve o'clock midnight so often that I will tell you right here and now, and I will say it for the last time, that this property, this merchandise, will by some miracle be off of your property by twelve o'clock tonight.'
Jaffe returned again to the house about eight o'clock p.m., accompanied by two Greenville Avenue patrolmen. At that time the movers had still not arrived. When Mrs. Arant began explaining to appellee the problem she was having in trying to remove the merchandise from the premises Jaffe told her that he wasn't interested in the problem involved but just wanted the merchandise out by midnight. Jaffe then instructed the patrolmen that: 'I want this door locked at twelve o'clock and these people off of my property.' He also told the patrolmen: 'I want you to understand that I don't want anything taken off the walls, I don't want any carpeting removed from house, no fixtures taken off out of the house .' He also said: 'I want you to watch these people very carefully and at the stroke of twelve o'clock I want them put off of this property and the doors locked, and anything that's in the house remains.'
Mrs. Arant testified that when Jaffe uttered the first words concerning 'a phony, cheat, and a crook', same were uttered in the presence of a number of people in the room and were heard by these people. She said that after she told Jaffe she was going to get out of the house he seemed greatly relieved and acted very pleasant.
Concerning her activities Mrs. Arant testified that she had participated in other garage or 'estate' sales, as well as the sale in question, as a hobby rather than a business.
When asked concerning the effect of the statements made by Jaffe upon her Mrs. Arant testified as follows:
'A He called me a phony, a cheat and a crook.
'Q Is that your best recollection of what was said in its entirety, just--
A I tell you, that kind of put everything else out of my mind, the little chitchat. To the best of my knowledge, he continued talking as he walked to the phone.
Q What did you understand Mr. Jaffe to mean when he said this, Mrs . Arant?
A Well, I don't know how to answer that. * * *
Q * * * But what did you think he meant by it?
A That I was misrepresenting it. I guess that's what phony means, that I was cheating people and that I was a crook. I mean, I don't know any other definition of the words.
Q In other words, you think he was just being abusive to you and casting aspersions on your reputation; is that what you're saying?
A Well, I would certainly think so.
Q And that's the way you took it?
A I feel very definitely if anyone has that said to them in front of a group of people, it's an aspersion to their character, particularly the people that don't know you very well.
Q According to your understanding, Mrs. Arant, what is a phony?
A What is a phony? Someone that's not what they pretend to be.
Q Well, perhaps--
A Would be my definition of it.
Q Someone putting on airs?
A Well, it could be applied that way. I don't think in this instance it was directed in that manner at all. I certainly wasn't putting on airs.
Q Well, according to your understanding, what is a cheat?
A Someone that tries to cheat people out of something.
Q Okay. And by the same token, what, to your way of thinking, is a crook?
A Same thing.
Q All right. And it's your testimony, then, your belief that Mr. Jaffe was just being abusive to you and casting aspersions on your reputation in general, is that right?
A Best of my belief and my deepest thinking, I didn't give it any--I could give it no other interpretation. It was pretty unjustified because I'm none of those things.
Q Well, there wasn't any other conversation in connection with those statements to indicate that you had done any other thing, was there?
A No.
Q Any of those things?
A No.'
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