Long v. Mertz

• Decision Date: 03 November 1965
• Docket Number: No. 1,CA-CIV,1
• Citation: 2 Ariz.App. 215,407 P.2d 404
• Parties: Russell F. LONG, Appellant, v. Joseph B. MERTZ and Jane Doe Mertz, his wife, Rufus Spoon and Bess M. Spoon, his wife, Julian H. McClure and Jane Doe McClure, his wife, and John Doe I, II, III, IV, V, VI, VII, VIII, IX and X and their wives, Appellees. * 45.
• Court: Arizona Court of Appeals

Page 404

407 P.2d 404

2 Ariz.App. 215

Russell F. LONG, Appellant, v. Joseph B. MERTZ and Jane Doe Mertz, his wife, Rufus Spoon and Bess M. Spoon, his wife, Julian H. McClure and Jane Doe McClure, his wife, and John Doe I, II, III, IV, V, VI, VII, VIII, IX and X and their wives, Appellees. ^*

No. 1 CA-CIV 45.

Court of Appeals of Arizona.

Nov. 3, 1965.

Review Denied Dec. 14, 1965.

Alan Philip Bayham, Phoenix, for appellant.

Dushoff & Sacks, by Jay Dushoff, Phoenix, for appellees Mertz.

Murphy, Posner & Franks, by Jerome L. Froimson, Phoenix, for appellees Spoon.

FRANK X. GODON, Jr., Judge.

The facts which gave rise to the filing of this action were as follows: Russell F. Long was a contractor with an Arizona contractor's license in General Engineering. From time to time over several years, he had done work for the Arizona Highway Department.

On March 14, 1958, after a hearing before appellee McClure, the Hearing Officer for the Registrar of Contractors, plaintiff Long's contractor's license was revoked by the Registrar of Contractors, pursuant to A.R.S. Section 32-1154, subsec. 12, for wilful of deliberate failure to pay an equipment rental bill to Western Machinery in the amount of $280.00, which bill plaintiff disputed.

The acts complained of in plaintiff's amended complaint all occurred during the pendency of an appeal by plaintiff Long from the Registrar of Contractor's action to the Superior Court in Maricopa County. Ultimately, the action of the Registrar, in revoking plaintiff's license, was set aside and plaintiff's license was reinstated. But it is to be noted that bond on this appeal was not set by the Superior Court until February 19, 1959, and was not filed by plaintiff until some time thereafter.

On December 17, 1958, plaintiff's wife, Reba Long, went to the Arizona Highway Department on plaintiff's behalf and asked appellee Joseph B. Mertz, the engineer in charge of the Contracts and Specifications Division of the Arizona Highway Department, for a bid envelope which contained the plans, specifications and other material necessary to submit a bid on an Arizona Highway Department Federal Aid job involving the construction of a bridge over the Grand Canal on the Black Canyon Highway in the City of Phoenix.

Mr. Mertz refused to give Mrs. Long all of the necessary materials and information after having discussed the matter with appellee Rufus Spoon, the Registrar of Contractors. The reason, according to Long, Mertz gave for refusing was that the Western Machinery bill had to be paid before Long could bid on the job. Mertz contends he stated that Long's license would have to be reinstated before he could bid.

Two days later, on December 19, 1958, Mr. Long, his wife, and three witnesses brought by Long, presented themselves to Mertz in his office. Long then asked Martz why he had refused the bid envelope to Mrs. Long on December 17, 1958, and allegedly Mertz replied, in the presence of the witnesses, 'You are not a qualified contractor.'

Plaintiff Long brought suit against Mertz, McClure, and Spoon, and their wives alleging three separate claims for relief. Count I is for damages for libel and slander for having stated Long was not a qualified contractor; Count II for loss of a $4,012.00 profit, due to defendant Mertz's having wrongfully refused to deliver a bid envelope on the job in question; and Count III is for damages for civil extortion.

Count III (civil extortion) was dismissed for failure to state a claim. Summary judgment was granted in favor of defendants on Count I (libel and slander), and during the trial before a jury, a verdict was directed in favor of defendants at the close of the plaintiff's case on Count II (loss of profit), and an involuntary dismissal of the action was ordered by the Judge under Rule 41, subsec. b, Rules of Civil Procedure, 16 A.R.S.

Although all parties discuss the same in their briefs, appellant did not appeal from the order of May 24, 1960, which dismissed Count III (civil extortion) for failure to state a claim, and therefore, this Court shall not consider the assignments of error in connection therewith.

Appellee rufus Spoon died after all the briefs were filed, and proper motion to dismiss the appeal as to Rufus Spoon and Bess Spoon, his wife, was filed, alleging that the cause of action for libel and slander was extinguished by the death of Mr. Spoon, no allegation having been made that he acted on behalf of the community. No opposition or objection was filed to this motion. We agree with the position of counsel for appellees Spoon, and therefore it is ordered dismissing this appeal with respect to appellee Rufus Spoon and Bess M. Spoon. (See Rule 4, Rules of the Supreme Court, 17 A.R.S., Sec. 14-477, Arizona revised statutes, McLellan v. Automobile Ins. Co., 9 Cir., 80 F.2d 344, and McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573, 576.)

The issues then remaining to be determined in this appeal are:

1. Whether defendant Mertz's alleged statement that Long was 'not a qualified contractor' was privileged under the circumstances; and

2. Whether the trial court was warranted in directing a verdict in favor of defendants at the close of the plaintiff's case.

The courts, from the days of the common law until the present, have, on the basis of public policy, granted immunity to certain persons from civil liability for having made defamatory statements regarding others. The immunity or privilege is, in some situations, deemed to be absolute; that is, unconditional immunity, even though the statements were made with malice. In others it is deemed to be 'qualified' or 'conditional', and recovery will be allowed if the court is satisfied that the statements were made maliciously or not in good faith.

'The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of state, including, it is said, communications made in the discharge of a duty under express authority of law, by or to heads of executive departments of the state, and matters involving military affairs.' 33 Am.Jur. Libel and Slander, § 125, p. 123.

This doctrine in generally applied in judicial proceedings subject to the qualification that the statement must be pertinent or relevant to the case. 33 Am.Jur. Libel and Slander, § 143, p. 140.

The qualified or conditional privilege may be invoked by one who, under such circumstances that it becomes right in the interest of society that he should tell third persons certain facts, does so in good faith and without malice. This immunity extends to one whose duty to make the communication is not a legal one, but is only a moral or social duty. 33 Am.Jur. Libel and Slander, § 126, p. 124.

In Arizona, the qualified privilege has been extended to defamatory newspaper publications Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150, Broking v. Phoenix Newspapers, inc., 76 Ariz. 334, 264 P.2d 413, 39 A.L.R.2d 1382, and to defamatory statements made by a member of the board of trustees of a school district concerning a teacher to other members of the school board at a meeting attended by spectators. Connor v. Timothy, 43 Ariz. 517, 33 P.2d 293.

In Phoenix Newspapers v. Choisser, supra, our Supreme Court said, 82 Ariz. at page 276, 312 P.2d at page 154:

'It is the occasion for the publication rather than the language thereof which gives rise to the privilege, and the privilege attaches in spite of the character of the publication itself, and continues until properly rebutted (citing cases).' (Emphasis ours.)

Our Supreme Court has not have occasion to pass upon what type of privilege, if any, attaches to the communications of an appointed official of the Arizona Highway Department of the rank of defendant Mertz.

It is stated in 53 C.J.S. Libel and Slander § 103, p. 166:

'It has been held that the head of an executive department of government cannot be held liable to a civil suit for damages because of official communications made by him pursuant to a legislative act and with respect to matters within his authority, by reason of any personal motive that might be alleged to have prompted his action. The protection of the rule has been further extended so as to reach and included subordinate government officers when engaged in the discharge of duties imposed on them by law.' (Citing cases.)

Supporting this textual statement are several leading cases: Barr v. Matteo, 360 U.S. 564, 79 S.C.t. 1335, 3 L.Ed.2d 1434 (1959), Montgomery v. City Of Philadelphia 392 Pa. 178, 140 A.2d 100, and Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739 (Cal.1957).

In Hardy v. Vial, supra, at page 496, the California Supreme Court Extended absolute immunity to officials of a state college and the State Department of Public Instruction saying:

'The rule of absolute immunity, nothwithstanding withstanding malice or other sinister motive, is not restricted to public officers who institute or take part in criminal actions * * * it has been extended by the federal decisions to all executive public officers when performing within the scope of their power, acts which require the exercise of discretion or judgment.'

In extending the principle of absolute immunity from civil suit to a Deputy Commissioner of Public Property and the City Architect of Philadelphia, the Pennsylvania Supreme Court said in the Montgomery case, supra:

'Absolute immunity is designed to protect the official from the suit itself, from the expense, publicity, and danger of defending the good faith of his public actions before a jury. And yet, beyond this lies a deeper purpose, the protection of society's interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business. Absolute immunity is thus a means of removing any inhibition which might deprive the public of the best service of its officers and agencies. * * *

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A refusal to...