Jolly v. Valley Pub. Co.

• Decision Date: 09 January 1964
• Docket Number: No. 36603,36603
• Citation: 63 Wn.2d 537,388 P.2d 139
• Parties: Clarence M. JOLLY, Respondent, v. VALLEY PUBLISHING COMPANY, Donald M. Crew and Jane Doe Crew, his wife, and Lloyd A. Fossum and Jane Doe Fossum, his wife, Appellants.
• Court: Washington Supreme Court

Page 537

63 Wn.2d 537

388 P.2d 139

Clarence M. JOLLY, Respondent, v. VALLEY PUBLISHING COMPANY, Donald M. Crew and Jane Doe Crew,

his wife, and Lloyd A. Fossum and Jane Doe Fossum,

his wife, Appellants.

No. 36603.

Supreme Court of Washington, Department 2.

Jan. 9, 1964.

Garvin, Ashley & Foster, Daniel J. Riviera, Seattle, for appellants.

James J. Keesling, Seattle, for respondent.

WEAVER, Judge.

Defendants appeal from a judgment entered after a jury verdict in the trial of consolidated cases involving the two-pronged law of defamation.

The first action against defendant Fossum is based upon alleged slanderous statements made to a deputy prosecuting attorney of King county concerning plaintiff's alleged unauthorized use of property of the town of Pacific, where he was the electric light superintendent and lineman. April 11, 1956, a criminal complaint was filed against plaintiff charging him with 'misconduct of a public officer'; plaintiff was never arrested. December 18, 1957, the criminal charge was dismissed by the prosecuting attorney.

The second action against defendants Crew and the Valley Publishing Company is based upon an alleged libelous newspaper article published in the April 26, 1956 issue of the Auburn Globe-News.

Later in this opinion we will set forth further facts as they become necessary to a discussion of the particular point under consideration. Additional facts, including the newspaper article, appear in our former opinion in which we reversed a summary judgment for defendants on the ground that the record raised genuine issues of material facts that should have been presented to a jury. Jolly v. Fossum, 59 Wash.2d 20, 365 P.2d 780 (1961).

'Malice,' the nub of the assignments of error in both actions, orbits in the field of the law of defamation in this state with at least three varying connotations, each applicable in different categories.

In the first category, malice is used in the sense that it is implied when a defamatory statement is, as a matter of law, said to be slanderous or libelous per se; the statement conveys a defamatory meaning without resort to extraneous facts. Grein v. LaPoma, 54 Wash.2d 844, 340 P.2d 766 (1959) ('You are a Communist') is illustrative.

'* * * In any such sense as this, 'malice' becomes a bare fiction.' Prosser, Torts (2nd ed.) 602.

In Byrne v. Funk, 38 Wash. 506, 80 P. 772 (1905), the court held that malice was not a necessary element of actionable libel in this jurisdiction.

The second sense in which malice is discussed is that its presence is claimed to eliminate the defenses of qualified privilege and fair comment. Of this situation, one authority said:

'* * * the qualified privilege will be lost if the defendant publishes the defamation in the wrong state of mind. The word 'malice,' which has plagued the law of defamation from the beginning, has been much used in this connection, and it frequently is said that the privilege is forfeited if the publication is 'malicious.' It is clear that this means something more than the fictitious 'legal malice' which is 'implied' as a disguise for strict liability in any case of unprivileged defamation.' (Italics ours.) Prosser, Torts, (2d ed.) 627.

Farrar v. Tribune Publishing Co., 57 Wash.2d 549, 358 P.2d 792 (1961) illustrates the third connotation of malice in the law of defamation. The court said:

'The issue then narrows to whether the existence or absence of malice can have an effect either to enhance or decrease the actual damages suffered by the party defamed.'

It is helpful to keep in mind that legal malice may be implied as a disguise for strict liability in case of unprivileged defamation; malice may defeat the defenses of qualified privilege and fair comment; its presence or absence may affect damages recoverable.

We recognize that malice cannot be defined in terms that will automatically resolve every case, nor can it always be classified with precision; however, clarity is not promoted when the decided cases discussing malice in one category are used as authority in another.

The slander action against Fossum

March, 1956, defendant Fossum was elected mayor of the town of Pacific, but pursuant to the existing law, did not take office until June. In the interim, he attended several council meetings. At least two matters of town business disturbed him and two members of the town council: the alleged use of the town truck by plaintiff after the council had cancelled his right to use it in his personal business (whether he used it is a disputed fact); and the council's sale to plaintiff of 2900 pounds of copper for $1.00. Plaintiff later resold the copper for approximately $1150. ¹ This was an alleged attempt to compensate plaintiff for engineering services performed in addition to his regular duties.

After a meeting with some of the town council, defendant Fossum interviewed a deputy prosecuting attorney of King County. He had several subsequent meetings at the request of the deputy. These conversations are the basis of plaintiff's slander action against defendant Fossum. We mentioned previously that criminal charges were commenced by the deputy prosecuting attorney against plaintiff, but later dismissed.

The principal defenses to an action for defamation are truth, consent, absolute privilege, qualified or conditional privilege, and fair comment or privileged criticism. See Gaffney v. Scott Publishing Co., 41 Wash.2d 191, 193, 248 P.2d 390 (1952); 3 Restatement, Torts § 583 et seq.; Brennan, 'An Outline of the Law of Libel in Washington,' 30 Wash.L.Rev. 36, 42 (1955).

The instant case concerns the defense of qualified or conditional privilege of statements made to a prosecuting attorney.

In Owens v. Scott Publishing Co., 46 Wash.2d 666, 674, 284 P.2d 296, 302 (1955), this court defined qualified or conditional privilege.

'On certain occasions one is qualifiedly or conditionally privileged to publish false and defamatory matter of another and is not liable therefor, provided such privilege is not abused. Facts contained in such communication need not be true, if published without malice, in good faith, and in an honest belief of their truth arrived at after a fair and impartial investigation or upon reasonable grounds for such belief. 3 Restatement of the Law of Torts 241 to 260, §§ 593 to 598. These occasions arise when te publication is for the protection of the interest of the publisher, Fahey v. Shafer, 98 Wash. 517, 167 P. 1118; the recipient of a third person, Ecuyer v. New York Life Ins. Co., 101 Wash. 247, 172 P. 359, L.R.A.1918E, 536; persons sharing a common interest, Chambers v. Leiser, 43 Wash. 285, 86 P. 627; Ward v. Painters' Local Union, 41 Wash.2d 859, 252 P.2d 253; family relationships, Kimble v. Kimble, 14 Wash. 369, 44 P. 866; public interest, Stevens v. Haering's Grocetorium, 125 Wash. 404, 216 P. 870. In connection with the last mentioned type of privilege the publication is privileged only when made to a public officer or a private citizen who is authorized to act. The privilege does not extend to a publication to the entire public. * * *' While there is authority indicating that public policy requires that statements made to a prosecuting attorney are absolutely privileged, ² the majority of the cases hold that the privilege is qualified or conditional, not absolute. ³ The statements must be made 'without malice, in good faith, and in an honest belief of their truth arrived at after a fair and impartial investigation or upon reasonable grounds for such belief.' But the privilege cannot be abused. For example, in Stevens v. Haering's Grocetorium, 125 Wash. 404, 216 P 870 (1923), the court said:

'* * * we find evidence in the record from which the jury might find that the statement to the police officers was made in a loud and unduly harsh manner, over a telephone located in a public market, and within the hearing of many.'

The rule is succinctly stated in 3 Restatement, Torts § 598.

'An occasion is conditionally privileged when the circumstances induce a correct or reasonable belief that

'(a) facts exist which affect a sufficiently important public interest, and

'(b) the public interest requires the communication of the defamatory matter to a public officer or private citizen and that such person is authorized or privileged to act if the defamatory matter is true.'

Decisions in this jurisdiction recognizing the defense of qualified privilege are cited in the quotation from Owens, supra. It is the universal rule that defamatory statements lose their conditional privileged character upon proof of actual malice.

The rule dispositive of the instant case is found in Fahey v. Shafer, 98 Wash. 517, 522, 167 P. 1118, 1120 (1917), wherein this court said '* * * where a communication is prompted by a duty to the public or * * * to another having a corresponding interest, it is privileged if made in good faith and without malice. [Authorities cited.]

'In this state malice is not ordinarily an essential element in the civil action for damages for libel or slander. [Authority cited.] But this is not true in cases involving the qualified privilege. In such cases actual malice must be proved before there can be a recovery. This follows from the very nature of the privilege which in itself is a complete defense in the absence of malice. The burden in such cases is upon the plaintiff to prove the existence of malice. [Authorities cited.] Whether a statement, if made in good faith and without malice, is privileged, is a question for the court. But if there is any evidence reasonably tending to show actual malice, the plaintiff has the right, notwithstanding the privileged character of the communication, to have the question of malicious excess of privilege submitted to the jury upon such evidence. [Authorities cited.] Where the qualified privilege exists, and the court can see that the language used will warrant no inference of malice, and there is no other...