Kinsey v. Real Detective Publishing Co., Inc.

• Decision Date: 05 July 1938
• Docket Number: Civil 3988
• Citation: 80 P.2d 964,52 Ariz. 353
• Parties: J. J. KINSEY, Appellant, v. THE REAL DETECTIVE PUBLISHING CO., INC., a Corporation, THE AMERICAN NEWS COMPANY OF ARIZONA, a Corporation, THE AMERICAN NEWS COMPANY, INC., a Corporation, and CECIL NEWMARK, Appellees
• Court: Arizona Supreme Court

80 P.2d 964

52 Ariz. 353

J. J. KINSEY, Appellant, v. THE REAL DETECTIVE PUBLISHING CO., INC., a Corporation, THE AMERICAN NEWS COMPANY OF ARIZONA, a Corporation, THE AMERICAN NEWS COMPANY, INC., a Corporation, and CECIL NEWMARK, Appellees

Civil No. 3988

Supreme Court of Arizona

July 5, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with instructions.

Mr. V L. Hash, for Appellant.

Mr Lynn M. Laney and Mr. Grant Laney, for Appellees.

OPINION

LOCKWOOD, J.

J. J Kinsey, hereinafter called plaintiff, brought suit for libel against The Real Detective Publishing Co., Inc., a corporation, The American News Company of Arizona, a corporation, The American News Company, Inc., a corporation, and Cecil Newmark, hereinafter called defendants. The Real Detective Publishing Co., Inc., entered a special appearance, objecting to the jurisdiction of the court, which objection was sustained. Thereafter the other parties defendant appeared and filed various motions, among them being one to make the complaint more definite and certain, on the ground that it set forth only excerpts from the alleged libelous article, and that the precise nature of the plaintiff's cause of action was not apparent therefrom, so that the defendant could either demur or answer in such manner as to enable the court to determine whether the article was libelous. This motion was granted, and an amended complaint was filed, setting up the whole of the article. Defendants demurred thereto, on the ground that the amended complaint did not state a cause of action, which demurrer was sustained, and, plaintiff electing to stand upon his complaint, judgment was entered in favor of the defendants, whereupon this appeal was taken.

There are but two points for our consideration. The first is whether or not the court erred in sustaining the motion to make the first complaint more definite and certain, and the second whether the amended complaint stated a cause of action in libel as against the defendants. The action was based upon an article published in a magazine called "Real Detective" which discussed a criminal case well known in Phoenix and the vicinity. The article is too long to be set forth in full in this opinion, but its substance was that there existed in Arizona an abortion ring, which covered practically the entire state, and which was particularly active in the city of Phoenix. It then set up in lurid details the alleged facts in regard to a criminal abortion performed by a woman named Billie Kinsey, the former wife of the plaintiff, and that she was convicted by a jury of murder in the second degree for the abortion. The article brought plaintiff into the case with the following language:

"Nude except for silk stockings which moulded two comely legs, and a garment draped across slender, young womanhood laying dying in a Phoenix, Arizona hospital....

"It was deathly quiet outside on the desert, where the waste stretches, buried in the pitchy darkness, now seemed like a ghastly tomb, and the gnarled cacti looked like demons from an unknown inferno.

"It was from out of that tomb a few minutes before that three men had stolen, bearing the blood-stained body of an unconscious girl. Their faces, the nurses later remembered, were distorted with terror.

"After depositing their limp burden they vanished again into the desert. The nurse on duty at the desk hurried after them, wanting their names for her records, but they had fled too swiftly.

"They, or some one, had tried to dress the girl...."

Then followed a most sensational discussion of theories, alleged facts and comments thereon in regard to the case, and the search of the officers for those responsible for the situation. It continued:

"They had almost given up the hunt, when they came across a young man of twenty-five or so, who rather reluctantly admitted that he might know something....

"His story was that he and a friend were drinking at the Grand Avenue place, when a strange man rushed in and asked them to help him move an injured girl to a hospital. He and his friend had gone willingly....

"His friend was found and he too, told the same story, almost word for word. Officers decided that the narrative needed considerable expending and they took the two into custody for further questioning. Their names were Charles Ackels and Calvert Lewallen. They both had reputations as hard working young men and neither had ever been involved in trouble....

"It was the third day when the case began to break fast. Realizing that they were first class suspects, Ackels and Lewallen starting placing together a few facts that might clear themselves and substantiate their story of being innocent bystanders. Out of the long cross examination, one point stood forth. They managed to describe the man they had helped, to such an extent that he was easily identified by the hangers on at the Grand Avenue beer parlor as J. J Kinsey, better known as 'Jap'....

"Deputies Louis Rodgers and Ernest Roach had already left the court house to scour the city for 'Jap' Kinsey, the third man in the hospital enigma and possibly the connecting link between the House of Horror and the hospital. Going to the Far West Touring Court, where it was reported that he had been living recently, they immediately spotted a 1925 automobile. They located Kinsey in one of the cabins.

"He opened the door readily enough to the officers, but assumed a stoical indifference when he learned they wanted him to accompany them to the sheriff's office....

"Arriving at headquarters, 'Jap...