Connor v. Timothy, Civil 3389

• Decision Date: 01 June 1934
• Docket Number: Civil 3389
• Citation: 33 P.2d 293,43 Ariz. 517
• Parties: J. E. CONNOR, Appellant, v. ELDRED TIMOTHY, appellee
• Court: Arizona Supreme Court

33 P.2d 293

43 Ariz. 517

J. E. CONNOR, Appellant, v. ELDRED TIMOTHY, appellee

Civil No. 3389

Supreme Court of Arizona

June 1, 1934

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Messrs Norris, Flynn & Patterson and Mr. Charles L. Ewing, for Appellant.

Messrs O'Sullivan & Morgan, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by J. E. Connor, hereinafter called defendant from a judgment in favor of Eldred Timothy, hereinafter called plaintiff, in an action for slander. The amended complaint upon which the case was tried alleges that plaintiff was a teacher in the public schools of Seligman Arizona, during the times mentioned in the complaint, and that defendant slandered him three separate times: (a) In the month of October, 1931, by stating to Mary Louise Mundine, in the presence of three other persons, "I'd like to know what becomes of the money that is taken in for the dances and basketball games. Well, Timothy is sure lining his pockets. That bird is sure getting his"; (b) by stating in the presence of F. W. Donovan and R. K. Burrett on the 28th day of March, 1932, "Easterday and Timothy are using the dance fund money for their personal use"; and (c) by stating on the 5th day of November, 1932, in the presence of some fourteen persons, "Mr. Timothy drank out of the same jug with a high school boy and I have the proof." The proper innuendoes were included in the complaint, showing that the statements were of a slanderous nature. This complaint was filed on the 9th day of March, 1933. Defendant answered and alleged that as to statement (a) the matter was barred by the statute of limitations, as to statement (c) that he did make it, but that it was made at a called meeting of the board of trustees of the Seligman school district, of which board defendant was a member, and was made without malice, for the purpose of advising the other members of the board as to conduct of plaintiff bearing on his qualifications as a teacher, and as to statement (b) he denied making it.

The case was heard before the court sitting with a jury, and the court held statement (a) was barred by the statute of limitations as a cause of action, but allowed it to go to the jury under proper instructions on the question of actual malice on the part of defendant. Upon the trial of the case it developed that statement (b), if made at all, was made some time between the 5th and 8th days of March, 1932, whereupon defendant objected to its being submitted to the jury on the ground that it also was barred by the statute of limitations, since the complaint was filed on the 9th day of March, 1933. To meet this plaintiff offered evidence that defendant, during the year ending March 9, 1933, was temporarily absent from the state for a period of five days, and the court submitted the issue of the statute of limitations on statement (b) to the jury, instructing it that, in determining the issue, the period of defendant's absence from the state should not be included as a part of the year fixed by the statute. The jury returned a verdict in favor of the plaintiff for nominal damages.

There are twenty-nine assignments of error which we shall consider in accordance with the legal propositions raised thereby in such order as seems most logical. The first is as to whether the court was correct in holding that a temporary absence from the state would be deducted in computing whether or not the cause of action based on statement (b) was barred by the statute of limitations. Our statute (Rev. Code 1928, § 2066) on that point reads as follows:

"§ 2066. Absence from state tolls statute. When a person against whom there shall be cause of action, shall be without the limits of this state at the time of the accruing of such action, or at any time during which the same might have been maintained, such action may be brought against such person after his return to the state, and the time of such person's absence shall not be accounted or taken as a part of the time limited by the provisions of this chapter."

Defendant urges that a merely temporary absence, where the party maintains his permanent residence within the state, such as was admittedly the case with defendant, is not to be considered as tolling the statute. It is generally held that, where the statute uses the words "residence" or "resides out of" or a similar phrase in referring to the absence, temporary absences do not toll the statute. Penfield v. Chesapeake, O. & S.W.R.R., 134 U.S. 351, 10 S.Ct. 566, 33 L.Ed. 940; Barney v. Oelrichs, 138 U.S. 529, 11 S.Ct. 414, 34 L.Ed. 1037.

But where, as in the case of our statute, the language does not refer to residence, but uses the phrase "shall be without" or similar language, the decisions are in conflict. Bauserman v. Blunt, 147 U.S. 648, 13 S.Ct. 466, 37 L.Ed. 316; Lane v. National Bank, 6 Kan. 74; Fisher v. Phelps, Dodge & Co., 21 Tex. 551; Blodgett v. Ultey, 4 Neb. 25; Morrell v. Ingle, 23 Kan. 32. We think, however, the better rule is that under such a statute temporary absences shall be considered as tolling the statute. The court therefore properly submitted to the jury the issue of whether the statute of limitations had run against statement (b), and by the verdict it was resolved in favor of plaintiff.

The next question is whether or not there is sufficient evidence to go to the jury on the question of malice. Defendant pleaded as to statement (c) that the same was qualifiedly privileged, in that it was made to co-members of the board of trustees of the Seligman school district for the purpose of informing them as to the character of plaintiff, so that they could determine whether he was a proper person to continue teaching therein. The general rule in regard to privileged communications is stated in 17 R.C.L., page 341, as follows:

" . . . This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. In the absence of malice an utterance may be qualifiedly privileged even though it is not true, and notwithstanding the fact that it contains a charge of crime. But mere color of lawful occasion and pretense of justifiable end cannot shield from liability a person who publishes and circulates defamatory matter. Hence, a publication loses its character as privileged, and is actionable, on proof of actual malice, or, at least, such gross disregard of the rights of the person injured as is equivalent to malice in fact. In the case of a qualifiedly privileged communication the occasion on which it was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts the burden on him to prove that there was malice in fact, that the defendant was actuated by motives of...