Central Arizona Light & Power Co. v. Akers, Civil 3517

• Decision Date: 17 June 1935
• Docket Number: Civil 3517
• Citation: 46 P.2d 126,45 Ariz. 526
• Parties: CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, Appellant, v. HARLOW H. AKERS, Appellee
• Court: Arizona Supreme Court

46 P.2d 126

45 Ariz. 526

CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, Appellant, v. HARLOW H. AKERS, Appellee

Civil No. 3517

Supreme Court of Arizona

June 17, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded, with directions.

Messrs Armstrong, Kramer, Morrison & Roche, for Appellant.

Mr. W L. Barnum and Mr. O. B. DeCamp, for Appellee.

OPINION

ROSS, J.

The plaintiff, Harlow H. Akers, brought this action against the Arizona Publishing Company, owner of the "Arizona Republic" and "Phoenix Gazette," daily newspapers published in Phoenix and circulated throughout the state, and against A. F. Morairty, Dell Perry, Ted Coe and the Central Arizona Light & Power Company, the owner of the utility that furnishes light, power and gas to the people of Phoenix and surrounding country; for damages to his reputation as a lawyer and citizen in publishing and causing to be published on August 5, 1933, in each of said newspapers, as a paid advertisement, the following article, to wit:

"The Anti-Utility 'Racket'

"(1) Handbills and sheets attacking this company and advocating municipal ownership have been circulated in Phoenix. An article based on a fictitious telegram appeared in a recent issue. This article attempted to represent that this company had embroiled itself in state politics. The lies were manufactured in great detail to give the appearance of truth. Not a single material statement in the article was true. Running throughout these attacks is the advocacy of municipal ownership.

"(2) There has been printed a photostatic copy of a contract evidencing that certain Phoenix men are to receive 25% commission from a California concern if they succeed in financing a municipal electric plant or distribution system in Phoenix. It bears the signature of the interested men. Under these conditions it is not surprising that they are shouting for municipal ownership.

"(3) We are aware that certain concerns are endeavoring to embroil our city in a financing scheme for municipal ownership whereby their local representatives would receive a fat commission. These representatives are trying to inflame public opinion against the utility.

"(4) False and misleading statements through dodgers, occasionally published sheets and soapbox orations are easily made by irresponsible people who are actuated by motives of personal gain at the public's expense and who have everything to gain with nothing to lose.

"(5) Every statement this company makes must be a fact because our property is cemented and anchored to the ground and we are a permanent citizen of Phoenix with large property interests.

"CENTRAL ARIZONA LIGHT AND POWER COMPANY."

It is alleged that said article is false, libelous, malicious and defamatory, and was published or caused to be published by defendants of and concerning plaintiff through evil motive, malice and ill will, with intent to injure, disgrace, and defame plaintiff and to bring him into public discredit as a lawyer and as a man and to cause the public to hold plaintiff in contempt and ridicule. The construction or explanation of the alleged libelous writing by the plaintiff, as set forth in the complaint, was:

(1) "That the phrase, 'The Anti-Utility "Racket,"' appearing as the headline to the above article quoted and especially the word 'Racket' appearing in quotation marks in said article above quoted, is a word, which was at the time of said publication known and understood to mean, an organized activity of the criminal underworld, of persons engaged in the occupation of making money illegitimately by extortion and other illegitimate means, and is an opprobrious epithet to be applied to a law-abiding citizen; that at the time and place of said publication it was intended by said defendants and was understood by the ordinary reading public that the word 'Racket' meant a gang or an organization engaged in the occupation of making money through illegitimate and unlawful means; that said word 'Racket' in the sense and meaning above defined and published had been, prior to said publication, widely used in many of the newspapers throughout the United States of America, and was a familiar word to the ordinary reading public and readers of the newspapers, and was intended by the said defendants and each of them, to describe a person belonging to a gang or organization engaged in the occupation of making money illegitimately, of criminal activity, extortion and other criminal practices, and was so understood by numerous persons reading said newspapers, and the defendants meant thereby and did charge this plaintiff with being a member of an organization or gang connected with the criminal world, engaged in criminal activities, connected with those whose occupation was to make money illegitimately by extortion and other unlawful means."

(2) That defendant in subdivision 2 of the alleged libelous writing intended to say and intended that the reading public should so understand that plaintiff had a contract, a photostatic copy of which had been published on June 2, 1933, in "Arizona Fax," a Phoenix newspaper, under the terms of which plaintiff was to collect 25 per cent. of the sale price of defendants' power plant, if successful in financing a municipal plant or distribution system in Phoenix, and that such commission was excessive, and that plaintiff was connected with a "racket" or scheme to secure excessive commissions and profits in connection therewith.

(3) That in subdivision 3 of said article defendant charged plaintiff with being a member of an illegal gang called a "racket" and as such member was to "receive a fat commission," meaning thereby an excessive and illegitimate amount for the services rendered, and was a member of said gang or "racket" endeavoring to inflame public opinion against defendants.

(4) That defendants in subdivision 4 of said article intended to charge, and that the public so understood, that plaintiff was a member of a gang or "racket" issuing false and misleading statements to the public, actuated by wrongful and unlawful motives of personal gain at public expense, meaning that plaintiff was attempting to make money by illegitimate means, extorting the same from the public.

(5) That defendants in subdivision 5 used the words "a fact" in the contrastive sense as showing defendants' statements were true and reliable, whereas plaintiff was engaged in a "racket" endeavoring by unlawful means to extort money from the citizens and taxpayers of Phoenix, and was so understood by the readers of the "Arizona Republic" and "Phoenix Gazette."

The allegations of damages are as follows:

"... plaintiff has been and is greatly injured and prejudiced in his capacity as aforesaid and has lost and been deprived of great gains and profits which would otherwise would have arisen and accrued to him in his said business and profession, the said publication being made by the defendants through ill-will and malice towards this plaintiff and with the intent, design and purpose on the part of the said defendants to injure this plaintiff in his professional standing and reputation, and to discredit and defame this plaintiff and to bring plaintiff into public discredit as an attorney-at-law and did bring him into public contempt and ridicule to his actual damage in the sum of twenty-five thousand ($25,000.00) dollars and by reason of malice on the part of the defendants in the publication and circulating of said article aforesaid, plaintiff is entitled to exemplary and punitive damages in the sum of fifty thousand ($50,000.00) dollars."

The defendants other than the Central Arizona Light & Power Company were dismissed by motion of plaintiff before the trial. The Central Arizona Light & Power Company, to which we shall hereafter refer as defendant, in its amended answer demurred to the complaint for insufficient facts to constitute a cause of action; admitted it caused the publication of the article as alleged; averred that the things stated in the advertisement were true; that they were published so that the users of electricity and gas might be informed or advised that the plaintiff, who was then seeking the Democratic nomination for Congress from Arizona, was publicly and privately advocating a municipal light and power plant for Phoenix, and that at the time he had a contract with the Municipal Engineering & Construction Corporation, a California concern, by the terms of which he and other residents of Phoenix were to receive a commission of 25 per cent. if successful in causing the said California concern to finance said public utility for Phoenix; that such commission would ultimately come out of the consumers of gas and electricity and defendant thought it proper and right to inform them of plaintiff's contract; and that it did so solely for the public good. Defendant denied that subdivisions 1 and 4 of the advertisement were concerning plaintiff, and alleged that 2 and 3 were concerning him and his associates and the commission contract therein mentioned.

Defendant denied generally all the allegations of the complaint, except those expressly admitted.

The demurrer was overruled and the case went to trial before the court and a jury. The court held that the innuendoes in plaintiff's complaint were surplusage and that the article was libelous per se. The jury returned a verdict in favor of the plaintiff in the sum of $10,000 for actual damages and $15,000 for punitive damages.

Defendant has appealed, assigning twenty-seven errors, which it has reduced to twenty-five legal propositions. Many of the questions raised are clearly without any merit, and these we shall not consider. Some of them...