Lally v. Cash

• Decision Date: 18 April 1917
• Docket Number: Civil 1526
• Citation: 18 Ariz. 574,164 P. 443
• Parties: J. M. LALLY, Appellant, v. J. G. CASH, Appellee
• Court: Arizona Supreme Court

164 P. 443

18 Ariz. 574

J. M. LALLY, Appellant, v. J. G. CASH, Appellee

Civil No. 1526

Supreme Court of Arizona

April 18, 1917

APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge. Reversed and remanded.

Mr. I L. Quiat and Mr. W. R. Chambers, for Appellant.

Mr. E V. Horton and Messrs. Stratton & Lynch, for Appellee.

OPINION

ROSS, J.

The appellee, who was the plaintiff below, instituted an action for damages against the appellant, Lally, and David E. Bronson, charging them with willfully and maliciously composing and publishing a certain libel of and concerning plaintiff by parting therewith and permitting the same to be seen and read by C. A. Jackson and various other persons. A verbatim copy of the alleged libelous article is set forth in the complaint. That it is unprivileged and libelous per se is unquestioned. The defendants answered the complaint by general denial. The trial was before a jury. Plaintiff examined defendant Bronson upon the trial as if under cross-examination under the provisions of paragraph 1680 of the Civil Code of 1913. During the course of the cross-examination of Bronson concerning conversations or interviews that he had had with the county attorney and deputy county attorney of Greenlee county about the alleged libelous article, the defendants interposed objections to the relation of said conversations or interviews upon the ground that they were privileged communications. This objection was sustained by the trial court, whereupon the plaintiff entered a nonsuit as to defendant Bronson. The trial proceeded as against defendant Lally and Bronson's testimony was permitted to stand and, against the objection of defendant Lally, was considered by the jury. Plaintiff had a verdict and judgment for $2,500.

We think the objection to the privileged character of the communication between the county attorney and Bronson was obviated by the dismissal of the action as against Bronson, for, even should it be granted that it was privileged as between Bronson and the county attorney, it could by no means extend to appellant, Lally.

The statute (paragraph 1680, Civil Code) provides for the cross-examination of an adverse party. This is a modification of the common-law rules of evidence. An interested adverse party is always an unwilling and antagonistic witness. The effective way of eliciting facts bearing upon the question involved is by leading questions. That Bronson was an interested and adverse party is evidenced by his answer, as also by his testimony elicited upon his cross-examination. The test of the right to cross-examine a party to a suit under the statute is an adverse interest. Suter v. Page, 64 Minn. 444, 67 N.W. 67; Moore v. May, 117 Wis. 192, 94 N.W. 45. The danger of this rule being abused, as suggested by appellant, by making antagonistic witnesses nominal parties for the sole purpose of cross-examination, is more apparent than real. If such case should arise, the trial court can and will take care of it. In this case it is clear that the appellee acted in entire good faith in making Bronson a defendant and also in his cross-examination.

One claiming damages in tort may join all or any number of the tort-feasors in the action as defendants. It was not essential, of course, that he make Bronson a defendant, nor, having made him a defendant, was it indispensable that he retain him as one. In 14 Cyc. 411, it is said:

"Actions of tort being in their nature joint and several, plaintiff in such an action may, at any stage of the cause, enter a nolle prosequi, dismiss, or discontinue as to a part of the defendants without discharging the rest."

It is contended by appellant that the court committed error in refusing to instruct the jury to return a verdict in his favor, for the reason that there is no competent evidence in the record that in any way connects the appellant with the composition or publication of the alleged libelous article. A close and analytical review of the evidence impresses us with the truth of the appellant's contention. Giving the evidence all the consideration to which it is entitled, we think it falls short of showing that the appellant participated either in its composition or publication. The appellee, either from choice or necessity, chose to make out his case with the testimony of defendant Bronson, Deputy County Attorney Dave Ling, and C. A. Jackson, the last of whom he alleges in his complaint saw and read the libelous article. Bronson's testimony in regard to the alleged libelous article, when carefully read, does not positively, either directly or indirectly, connect appellant therewith, either as publisher or composer. His conduct upon the witness-stand and his studied evasion in answering questions might well have aroused the suspicion of the jury that he was not openly and frankly telling the truth, but this action upon his part, however objectionable, cannot be substituted for positive evidence of the facts sought to be proved. His testimony is as follows:

"By Mr. Horton: Q. You are one of the parties defendant, are you not? A. I am.

"Q. You know Mr. J. M. Lally? A. I do.

"Q. Do you know Mr. J. G. Cash, the plaintiff? Did you know these parties on or about March 26, 1914? A. I did.

"Q. On or about that date did the defendant Mr. Lally bring an article to you and ask you to publish it, concerning the plaintiff, Mr. Cash? A. I do not remember.

"Q. Did he at any time about that time bring an article to you concerning Mr. Cash and ask you to publish it? A. I do not remember.

"Q. You do not remember? A. No, sir.

"Q. You do not remember anything about it, do you, Mr. Bronson? A. I believe not.

"Q. Mr. Bronson, do you remember on or about the 26th day of March, 1914, of Mr. Lally bringing you an article that is set out in this complaint, and he, in your office or printshop, in Clifton, signed this article, purporting to be the author of it, in the presence of C. A. Jackson, G. A. Sterling, and Miss Maud Gutch? A. Mr. Lally has brought me articles at different times. I cannot remember the particular ones or particular times.

"Q. Did he bring you an article on or about this time? A. He brings them every week, so he must have.

"Q. Did Mr. Lally, on or about the 26th day of March, 1914, bring you an article and ask you to publish it, concerning Mr. Cash? A. About what date?

"Q. On or about the 26th day of March, 1914, or during the week of that date? A. I do not remember.

"Q. Can you state that he did not bring you one? A. No, sir.

"Q. I will ask, Mr. Bronson, you know Mr. Dave Ling, do you not? A. I do.

"Q. I will ask you if you stated to him on Monday, on or about the 29th day of March, 1914, that Mr. Lally had brought you an article the week prior, concerning Mr. Cash and asked you to publish it? A. I don't think I ever had any such communication with Mr. Ling.

"Q. I will ask you if you didn't make that sort of statement to me some time during the week of March 26, 1914. A. I did discuss the subject with you.

"Q. Now, I will ask you this question, Mr. Bronson, and I will try to frame it so it will not be privileged: Did you, during the week of March 27, 1914 -- did Mr. Lally come to you with an article concerning Mr. Cash and ask you to publish it, the article that you spoke to me about? A. Mr. Lally brought me articles every week. He very likely brought me one that week.

"Q. Now, Mr. Bronson, I will ask you to read that, and I will ask you if that isn't a copy of the article which you spoke to me about and which you testified that Mr. Lally brought you and asked you to publish? A. I could not say if that is the same article.

"Q. You cannot say that it is not the same article? A. No, I cannot.

"Q. Then you don't remember? A. I do not remember. I cannot remember the language.

"Q. The article which you spoke to me about and which Mr. Lally brought to you for publication, was it not similar to this? A. I could not say. I receive articles every week that I never use, and I don't pay any attention to them and don't keep them in mind.

"Q. Have you the original of this article in your possession? A. I have not.

"Q. Did you ever have it in your possession? A. I can say as I did before, I do not know whether that is the same article or not, or whether that is a correct copy or not.

"Q. Have you read this, Mr. Bronson? A. I looked at it.

"Q. I want you to read that. A. Is this the same article read in the complaint this morning?

"Q. Yes. A. Well, I heard that, and know what the substance of that is.

"Q. Do you remember ever having that article in your possession? A. No, sir; I cannot say I do.

"Q. Then you will not say that you have not had the original of this article in your possession? A. I do not think I have."

Bronson fails to state that appellant gave him the alleged libelous article. From his testimony it is reasonably certain that appellant was a regular weekly contributor to the paper being published by Bronson. When asked about the particular article in question, he does not admit or state that it was given to him by appellant. He refuses to identify the article in question as one given to him by appellant. He says: "I do not remember. I cannot remember the language." There is positive evidence that he had the article in his possession, although he denies it. The fact that appellant brought him articles every week and probably one about the twenty-sixth day of March is a circumstance which when taken in connection with the appellant's signature being attached to this particular article, would tend to arouse suspicions that he gave Bronson the article in question. But, as we will hereafter show, there is no proof that it was the appellant's signature or that he was the author of ...