Caruso v. Local Union No. 690

• Decision Date: 08 January 1987
• Docket Number: No. 51554-9,No. 28,28,51554-9
• Parties: , 106 Lab.Cas. P 55,719, 118 Lab.Cas. P 56,532 Robert E. CARUSO, Respondent, v. LOCAL UNION NO. 690, and Joint Councilof International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellants.
• Court: Washington Supreme Court

Page 524

107 Wn.2d 524

730 P.2d 1299, 106 Lab.Cas. P 55,719,

118 Lab.Cas. P 56,532

Robert E. CARUSO, Respondent, v. LOCAL UNION NO. 690, and Joint Council No. 28 of

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America, Appellants.

No. 51554-9.

Supreme Court of Washington,

En Banc.

Jan. 8, 1987.

Hafer, Price, Rinehart & Schwerin, Richard Robblee, Hugh Hafer, Seattle, for appellants.

Lee, Smart, Cook, Martin & Patterson, P.S., Inc., Joseph J. Ganz, Seattle, Frank Conklin, Spokane, for respondent.

BRACHTENBACH, Justice.

A labor union appeals from a judgment of $244,000 in favor of a defamation plaintiff, raising instructional, juror challenge, and evidentiary issues. First, did the trial court err in submitting conflicting jury instructions on the elements of a defamation action and the burdens to be met by a defamation plaintiff, and assuming error, is reversal required where the jury nevertheless found the plaintiff met his highest burden and substantial evidence exists to support that finding?

Second, did the trial court commit reversible error in denying defendant's challenge for cause of a juror, where defendant exercised a peremptory challenge as to that juror, and defendant demonstrated no prejudice through his use of a peremptory challenge?

Third, was reversible error committed when the trial court admitted the following evidence: (1) deposition of the individual whose altercation with the plaintiff was the basis for the alleged defamation; (2) testimony by plaintiff's We hold that none of the alleged error amounts to reversible error. Accordingly, we affirm the judgment.

expert on the issue of causation of plaintiff's business losses; (3) testimony regarding anonymous phone calls received by plaintiff and his employees shortly after publication of the allegedly defamatory article?

In 1969, Robert Caruso opened a retail floor covering business in downtown Spokane known as "Linoleum & Carpet City". Caruso also owned a parking lot located three blocks from his retail business. He rented parking spaces on this lot to customers on a monthly basis. Posted at the lot was a sign reading "Private parking. Violators will be towed."

On several occasions beginning in the summer of 1973, Caruso found access to the parking spaces on his lot blocked by delivery vans and trucks which were not authorized to be on his premises. On one such occasion he encountered a beer truck in which the keys had been left. Unable to locate the driver in nearby taverns, Caruso removed the keys from the truck and took them to his store. From there he called the owner, whose name was printed on the truck, and asked him to collect the keys and remove the vehicle.

In the meantime, the beer truck driver, Aleck Contos, who was a member of Local 690 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 690), had learned that Caruso had the keys. Contos telephoned Caruso. After a heated exchange, Caruso informed Contos that he was going to have the truck towed. Then Caruso called the towing company.

Contos soon appeared at the parking lot, where Caruso was awaiting the tow truck. Contos protested the towing, became physically and verbally abusive, and threatened Caruso with retaliatory action by Local 690. In the midst of the general confusion which followed, Caruso received police intervention. Ultimately the beer truck was towed just far enough to remove it from the lot.

Shortly after these events, Contos related the incident to Mike Olds, an officer of Local 690. A few weeks later, the Washington Teamster, a union newsletter with a statewide circulation at that time of approximately 50,000, carried a "do not patronize" article which is the focus of this controversy. Mike Olds wrote the article. It appeared in the November 9, 1973 newsletter as follows:

Don't [P]atronize Carpet City in Spokane

This is to notify all members of Teamsters Union, Local 690 and all other Teamster and Laboring people in the State of Washington that when traveling to and from the Expo City--"please do not patronize Carpet City Carpet & Linoleum Shop at West 518 Main Avenue"--Spokane, Washington," [sic] (Expo City). The reasons for this request are: This Company is continuously harassing the Teamsters and other laboring people who may at some time use the parking facility at this place of business to make a delivery because of the congested traffic problems in Expo City since construction is going on mainly in that area. Someone from this Company removes the keys of such vehicles, have [sic ] the equipment impounded and create [sic ] many problems for these employees and their employers including the cost of impoundment to those effected [sic ].

This company will not cooperate with these drivers when told that they will move their equipment and apologize for parking in this area--their equipment is still impounded.

We request that all Laboring people--Teamsters or otherwise--do not Patronize Carpet City Carpet & Linoleum Shop.

Thanks kindly for your Support.

Teamsters Union, Local 690.

Upon learning of this article's publication, Caruso attempted to contact Local 690. His calls were not returned and his efforts to meet with the union's business agent were unsuccessful. He then began to receive anonymous threatening phone calls. These calls continued over a period of 6 months to a year and apparently parroted the language of the article in the union newsletter.

Caruso became despondent. He feared for his own safety In December 1974 Caruso filed an action for business interference against Local 690. In April 1980 he amended his complaint to include defamation. Trial to a jury in March 1981 on both causes of action resulted in an award to Caruso of $102,000. The Court of Appeals affirmed in Caruso v. Local 690, Int'l Bhd. of Teamsters, 33 Wash.App. 201, 653 P.2d 638 (1982). This court reversed in Caruso v. Local 690, Int'l Bhd. of Teamsters, 100 Wash.2d 343, 670 P.2d 240 (1983), holding that plaintiff could not prevail on his business interference claim after NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (boycott of white merchants by a coalition of blacks for purposes of bringing about political, social, and economic change was a constitutionally protected activity). Because the award to Caruso had been based on unsegregated business interference and defamation claims, this court remanded for retrial of Caruso's defamation action.

                and that of his employees.   His two key employees began to carry handguns.   His business dropped off.   Finally, the next year, he moved his retail outlet to a shopping center north of town.   He continues to operate at that location
                

The retrial, which was held in December 1984, resulted in a jury award of $295,000 to Caruso based on defamation. Since Caruso had previously settled with another defendant, the court entered judgment against Local 690 for $244,000. We accepted direct review.

I JURY INSTRUCTIONS

The jury found that Local 690 was liable for defamation, that the union's actions constituted malice, and that Caruso was damaged as a proximate result of the acts of the union. Local 690 contends that plaintiff failed to carry his burden on all elements of defamation and that certain jury instructions were erroneous. Since most of the jury instruction error assigned by the union relates to specific defamation elements, the alleged error will be analyzed under each element.

"[A] defamation plaintiff must show four essential elements: falsity, an unprivileged communication, fault, and damages." Mark v. Seattle Times, 96 Wash.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982); Bender v. Seattle, 99 Wash.2d 582, 599, 664 P.2d 492 (1983); Caruso v. Local 690, Int'l Bhd. of Teamsters, 100 Wash.2d 343, 352, 670 P.2d 240 (1983).

A. Falsity

Appellant assigns error regarding the falsity element to an instruction which appears to assign the burden of proving falsity to plaintiff while simultaneously giving defendant the burden of proving substantial truth. In Mark v. Seattle Times, supra at 486 this court required a defamation plaintiff to prove falsity. Such a requirement was recently approved by the United States Supreme Court in Philadelphia Newspapers, Inc. v. Hepps, --- U.S. ----, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). In that case, the Court held that "at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false." Philadelphia Newspapers, Inc., 106 S.Ct. at 1559.

Since it is settled that Caruso, as a private defamation plaintiff, has the burden of proving falsity, the challenged instruction is misleading to the extent it appears to assign simultaneous burdens to plaintiffs and defendant on this element.

The standard for sufficiency of jury instructions is set forth in Brown v. Spokane Cy. Fire Protec. Dist. 1, 100 Wash.2d 188, 194, 668 P.2d 571 (1983). Jury instructions are not erroneous if they "(1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law." Brown, at 194, 668 P.2d 571. Since this instruction was misleading, under Brown, it was erroneous.

For erroneous instructions to require reversal In this case, the evidence was sufficient "to persuade a fair-minded person" that the article's statements were false. Caruso's evidence included testimony of his employees, both of whom testified that Caruso had never before removed keys from any vehicle or had any vehicle towed. Moreover, they testified that Caruso had an exemplary relationship with all the teamsters who delivered to his store. In addition, a local tavern owner, who allegedly told the beer truck driver that Caruso habitually took keys and...