Jolly v. Fossum
| Decision Date | 26 October 1961 |
| Docket Number | No. 35839,35839 |
| Court | Washington Supreme Court |
| Parties | Clarence M. JOLLY, Appellant, v. Lloyd A. FOSSUM et ux., John L. Fournier et ux., and Donald M. Crew et ux., doing business as Valley Publishing Company, Respondents. Clarence M. JOLLY, Appellant, v. VALLEY PUBLISHING COMPANY, a Washington corporation, Respondent. |
James J. Keesling, Seattle, for appellant.
Garvin, Ashley & Foster, Daniel J. Riviera, Seattle, for Crew and fournier.
Weter, Roberts & Shefelman Robert G. Moch, Seattle, for Fossum.
This action was brought to recover damages for alleged libel and slander. It was alleged in the complaint that the defendant Lloyd A. Fossum, who was mayor-elect of the town of Pacific at the time, made slanderous statements about the plaintiff to the other defendants, publishers of the Auburn Globe-News, who in turn printed them in a libelous article. A motion of the defendants for summary judgment was heard on the pleadings, excerpts from a deposition of the plaintiff, a copy of minutes of the town of Pacific for May 24, 1955, and a copy of the transcript in criminal cause No. 154, before John W. Croome, Justice of the Peace, Seattle Precinct. The court found that the statements conplained of were true and dismissed the action.
On appeal, the plaintiff contends that there was a genuine issue as to the truth or falsity of the allegedly slanderous statements and libelous publication.
According to the allegations of the complaint, the plaintiff was employed as electric light superintendent for the town of Pacific, on or about May 24, 1955; his duties required him to be on call twenty-four hours a day and to be available in the event of emergencies which might involve the electric power service of the town; and in connection with such duties he was authorized and permitted by the town council to have with him and to use town equipment and motor vehicles at all hours of the day and night. Prior to March, 1956, plaintiff had earned and enjoyed the respect, esteem, and confidence of the public.
In paragraph five of the complaint, it was alleged that during the month of April, 1956, or thereabouts, the defendant Lloyd A. Fossum willfully and maliciously, and with the purpose and intent to expose the plaintiff to hatred, contempt, disgrace, ridicule and obloquy, and to deprive the plaintiff of public confidence and social intercourse, and to injure and destroy the plaintiff's good business and social reputation, and to impute to the plaintiff the commission of a crime, misconduct and dishonesty in public office, want of official integrity and fidelity to public trust, and to injure and smear the plaintiff's good name and standing in his community and with his fellow men, spoke slanderous words to F. A. Walterskirchen, in that he falsely accused the plaintiff of using a panel truck, equipment and tools belonging to the town of Pacific without authority or permission, and of taking electrical materials belonging to the town of Pacific for the plaintiff's private benefit and personal gain.
According to the allegations of paragraph six, by reason of said accusations, an arrest warrant was prepared and a charge of 'misconduct of a public office' was filed against the plaintiff; said warrant was not served upon the plaintiff; he was not arrested; and the charge was never prosecuted, and was dismissed on December 18, 1957.
It was alleged in paragraph seven, eight, and nine, that during the month of April 1956, or thereabouts, said defendant willfully and maliciously (and with the same purpose and intent as was set forth in paragraph five of the complaint), made the same false accusations to the defendants John L. Fournier and/or Donald M. Crew and/or their employees and agents; that as a result a libelous article was published in the April 26, 1956, issue of the Auburn Globe-News, which implied that the plaintiff had lied to sheriff's deputies; used city equipment on private contracting work without permission; was guilty of misconduct as a public officer; and had used city equipment on private contracting work after he had received a copy of council minutes referred to in the article; that there were changes in the electrical inventory which were unaccounted for (implying theft on the part of the plaintiff), and that the plaintiff had absconded. It was also alleged that a report of the charge against the plaintiff had been published in the Seattle Post-Intelligencer, a newspaper of large circulation.
The plaintiff asked damages in the amount of $85,000. In his second cause of action he sought damages from the publishers, for publication of the allegedly libelous article, in the same amount.
The defendants denied that they had acted maliciously, and affirmatively alleged that the statements and publication were true.
The allegedly libelous article, a copy of which was attached to the complaint, reads as follows:
'Equipment Use Not Authorized, Fossum Reports
'Pacific's Mayor-elect Lloyd Fossum this week stated that the former town electrician, C. M. Jolly, apparently was in error when he reportedly told King County sheriff's deputies recently that he had been granted permission to use city equipment of private contracting work.
'Jolly, who has been accused of 'misconduct of a public officer' has been under unvestigation by the office of Chief King County Deputy Prosecutor F. A. Walterskirchen. Jolly was not arrested on the charge.
'Jolly admitted to Walterskirchen that he had used the city's truck and tools on about 10 of 20 private jobs he had had since going to work for the town, including work in Auburn, Puyallup and Summer, with full permission of the council.
'In answer, Fossum pointed to the minutes of the regular council meeting of February 29, a portion of which read:
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...genuine issue as to any material fact exists. Hughes v. Chehalis School District, 61 Wash.2d 222, 377 P.2d 642 (1963); Jolly v. Fossum, 59 Wash.2d 20, 365 P.2d 780 (1961); Trautman, Motions for Summary Judgment: Their Use and Effect in Washington, 45 Wash.L.Rev. 1 (1970). In defamation acti......
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