Lunz v. Neuman, 33271

• Decision Date: 01 December 1955
• Docket Number: No. 33271,33271
• Citation: 48 Wn.2d 26,290 P.2d 697
• Court: Washington Supreme Court
• Parties: Edwin LUNZ, Respondent, v. Edwin L. NEUMAN and Eva Neuman, his wife, and the marital community composed thereof, Appellants.

Page 26

48 Wn.2d 26

290 P.2d 697

Edwin LUNZ, Respondent, v. Edwin L. NEUMAN and Eva Neuman, his wife, and the marital community composed thereof, Appellants.

No. 33271.

Supreme Court of Washington, Department 1.

Dec. 1, 1955.

Rehearing Denied Jan. 23, 1956.

Medley & Haugland, Dale E. Sherrow, Seattle, for appellants.

Max R. Nicolai, Seattle, for respondent.

OTT, Justice.

This is an appeal from an order granting a new trial in an action for slander. The jury found for the defendants. The court granted plaintiff a new trial upon the following grounds: (1) Error in giving an instruction on qualified privilege, and (2) that substantial justice was denied when Mr. and Mrs. Charles Savage were permitted to testify at the trial.

Appellants contend that there was sufficient evidence to merit giving the questioned instruction; hence, it was error to grant a new trial upon the first ground. They further contend that permitting the two witnesses to testify, under the circumstances of this case, did not in any manner prejudice the respondent, or prevent substantial justice, and that it was error to grant a new trial upon the second ground.

The questioned instruction referred to in the court's order reads as follows:

Instruction No. 10: 'The term 'privileged' has been referred to as an affirmative defense set up by defendant Edwin L. Neuman in his answer.

'A communication may be either privileged or qualified privileged. The rule of qualified privileges is this: Where the statement is made touching a matter in which the party making it has an interest to another having a corresponding interest or representing one having a corresponding interest, it is privileged if made in good faith and without malice. In such cases, actual malice and lack of good faith must be proven by the plaintiff by a preponderance of the evidence. Communications within the privilege are not actionable because they are false and defamatory, but express malice must be proved by the plaintiff by a preponderance of the evidence.

'You are instructed that if you find the communications and words of which plaintiff complains were spoken to the witnesses Rogstad and MacArthur under the circumstances above set out, they would be what the law terms 'qualified privileged."

There is no contention that the questioned instruction does not properly express the law. The court granted a new trial for the stated reason 'that said instruction was erroneous as a matter of law under the facts developed by the evidence.'

The respondent, in his brief and oral argument, contended that privilege or qualified privilege was not pleaded.

Paragraph No. 1 of the affirmative defense reads, in part, as follows:

'* * * the said words and statements * * * were made under such circumstances that they were privileged and were not prejudicial or detrimental to the plaintiff.'

Paragraph No. 2 of the affirmative defense states, in part:

'* * * that the said plaintiff by his acts and conduct, solicited statements to be made of him; * * *'

In the reply, these allegations were denied. We find no merit in respondent's contention that the pleadings did not raise the issue of privilege and qualified privilege.

Was there sufficient evidence to merit the giving of the questioned instruction? There was circumstantial evidence which, if believed by the jury, established the following: That, when the respondent was questioned as to the alleged shortages, he voluntarily quit; that he left appellants' store with Rogstad; that they had engaged in conversation; that Rogstad, knowing of the circumstances under which the respondent had quit his employment, returned to the store the next day to inquire where respondent was; that he pressed the conversation concerning respondent's voluntary termination of his employment and elicited the statement from appellant Edwin Neuman which gave rise to this cause of action; that Rogstad talked freely with respondent's attorney and took an apparent personal interest in the trial, and that he was evasive in his answers upon cross-examination, when called as a witness for respondent. This evidence raised an inference from which the jury could well have found that Rogstad had an interest in respondent's cause of action, in that he had solicited the statements for the purpose of communicating them to the respondent so that an action for slander could be instituted thereon. Although the evidence admittedly is circumstantial, in Smith v. Leber, 1949, 34 Wash.2d 611, 619, 209 P.2d 297, 301, we said:

'Circumstantial evidence is often the most satisfactory in the ascertainment of a fact and is quite as conclusive in its convincing power as is direct evidence. [Citing cases.]'

Each party is entitled to have his theory of the case presented to the jury by proper instructions, if there is any evidence to support the theory. Allen v. Hart, 1948, 32 Wash.2d 173, 176, 201 P.2d 145. We hold that the pleadings put the qualified privilege theory in issue, and that the evidence in support thereof merited the giving of the instruction by the court. Hence, it was error for the court to grant a new trial upon this ground.

Was the respondent denied substantial justice when the court permitted Mr. and Mrs. Charles Savage to testify? The respondent previously had interviewed Mr. Savage as a prospective witness while preparing his case for trial. It was during the trial that the appellants first learned of Mr. and Mrs. Savage as possible witnesses who would furnish evidence favorable to them. When appellants called the Savages as witnesses on Monday, November 1st, respondent objected, giving as his reason that their names had not been furnished as possible witnesses for appellants at the time of taking the discovery deposition. There was no showing that appellants knew of the witnesses at the time mentioned. At the court's suggestion, respondent's counsel interviewed Mrs. Savage alone in the court's chambers. After the interview, respondent adhered to his objection. The testimony of the witnesses then was excluded.

The appellants, before resting their case in the afternoon of November 1st, asked the court to reconsider its ruling excluding the Savages' testimony, and renewed their offer of proof. The court deferred a further ruling thereon until Wednesday, November 3rd. The appellants then rested their case, subject to the court's further ruling.

Respondent thereupon proceeded with his rebuttal testimony, calling two rebuttal witnesses prior to that day's adjournment. At 9:30 a. m., November 3rd, the court permitted appellants to reopen their case and allowed Mr. and Mrs. Savage to testify. The respondent did not renew his objection to the admission of their testimony. Thereafter, respondent continued with rebuttal testimony which controverted the testimony of the Savages.

Did the court err, under ...