Modla v. Parker

• Decision Date: 06 April 1972
• Docket Number: CA-CIV,No. 1,1
• Parties: Steve MODLA, Appellant, v. Scotty PARKER and Southside Hospital, Appellees. 1554.
• Court: Arizona Court of Appeals

Page 494

495 P.2d 494

17 Ariz.App. 54

Steve MODLA, Appellant, v. Scotty PARKER and Southside Hospital, Appellees.

No. 1 CA-CIV 1554.

Court of Appeals of Arizona, Division 1, Department B.

April 6, 1972.

Rehearing Denied May 2, 1972.

Review Denied June 20, 1972.

Herbert B. Finn, by Galen h. Wilkes, Phoenix, for appellant.

Jennings, Strouss & Salmon, by Nicholas Udall, Phoenix, for appellees.

JACOBSON, Judge.

The primary questions raised by this appeal deal with the liability of a hospital for discharging a patient and the question of what constitutes slander Per se.

On July 15, 1968 plaintiff-appellant, Steve Modla, was admitted as a patient to the Southside Hospital for treatment of lesions on his lips. Almost immediately difficulties arose between appellant and his attending physician. The next day the doctor notified Scotty Parker, a hospital administrator, of his decision to terminate the case and discharge the patient. Later in the day Parker told appellant that the hospital regulations required a patient to have an attending physician responsible for the patient's medical care and treatment, and that since appellant had no attending physician it would be necessary to discharge him. Immediately prior to the discharge, Parker in the presence of an assistant purportedly paid to appellant, 'do me a favor and see a psychiatrist.'

Thereafter, appellant filed a complaint against Parker individually, seeking damages for slander in the amount of $272,000. A second complaint was also filed against the hospital seeking damages for its alleged refusal to treat appellant and for wrongfully discharging him from the hospital. As a result of this conduct, appellant allegedly suffered damages in the amount of $750. In addition he prayed for one million dollars in punitive damages against each defendant. Upon motion by appellees both cases were consolidated for trial.

Following the filing of answers, appellees moved for summary judgment, which was granted in December, 1969. The following May, appellant's newly-appointed counsel made a motion for relief from this final judgment. Initially, the trial court denied the motion but then Sua sponte reconsidered said motion, reversed itself, setting aside the December, 1969, judgment. In June, appellant's second attorney was permitted to withdraw. In July, the court granted appellees' second motions for summary judgment. Upon retaining a third attorney, appellant has appealed from these judgments.

Appellees first contend that this appeal must be dismissed because the trial court erred in setting aside the judgment granted to them in December, 1969, from which there was no timely appeal. Under the circumstances set forth in Rule 60(c), Rules of Civil Procedure, 16 A.R.S., it is within the sound discretion of a trial court to set aside a final judgment and that action will not be disturbed on appeal except for clear abuse of discretion. Rule 60(c), Rules of Civil Procedure, 16 A.R.S., Eldridge v. Jagger, 83 Ariz. 150, 317 P.2d 942 (1957). In this case the trial court ruled on appellees' motion for summary judgment the same day they furished the court with a copy of the hospital records. Rule 56(e), Rules of Civil Procedure, provides in part that 'sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.' In addition, Rule 56(c) requires that 'the motion shall be served at least ten days before the time fixed for the hearing.' Appellant contends that these rules were not complied with and as a result he did not have sufficient time to reply adequately to the contents of the hospital records.

From a reading of the record we believe that sufficient grounds existed for setting aside the December 1969 judgment, and the trial court did not abuse its discretion in so doing.

As to the merits of the case, appellant contends that the trial court erred in granting summary judgment in favor of defendant Parker, as the statements he allegedly made were slanderous Per se and presented a valid jury question as to his special damages. As a general rule, slander Per quod is not actionable unless special damages are pleaded and proved. Berg v. Hohenstein, 13 Ariz.App. 583, 479 P.2d 730 (1971). However, slander Per se is actionable without a need to plead or prove special damages if the utterance falls within one or more specified categories, ¹ damages in such case being assumed.

An oral defamation which concerns one in his profession, trade or business is the category which appellant relies upon in support of his contention that the statement was slanderous Per se and therefore a genuine issue of material fact existed for the jury; that is, whether the statement made by Parker in fact injured appellant's business.

In order to fit within the business category, the slanderous utterance must prejudice the person in the profession, trade or business in which he is actually engaged. This means that the statement must be of or concerning one in his business capacity. See, 53 C.J.S. Libel and Slander §§ 32--33 (1948) Lady Windsor Hairdressers, Inc. v. Calvo, 35 Misc.2d 739, 231 N.Y.S.2d 221 (1962). Words which are merely injurious to one regardless of his occupation do not qualify as slander Per se. Gunsberg v. Roseland Corp., 34 Misc.2d 220, 225 N.Y.S.2d 1020 (1962). The alleged utterance of Parker 'do me a favor, see a psychiatrist,' clearly does not pertain to appellant in any business capacity. This being so, it was not slander Per se, and appellant was obliged to plead and prove special damages.

When one party moves for summary judgment, the non-moving party 'may not rest upon the mere allegations . . . of his pleadings; but his responses, by affidavits of otherwise . . . must set forth specific facts showing that there is a genuine issue for trial.' Rule 56(e), Rules of Civil Procedure, 16 A.R.S. Appellant had a duty to offer some evidence of his alleged special damages. Rather than follow the mandate of the rule he rested upon the general allegations of special damages in his pleadings. This is not sufficient. Patton v. Paradise Hills Shopping Center, Inc., 4 Ariz.App. 11, 417 P.2d 382 (1966). The trial court was correct in granting defendant Parker's motion for summary judgment.

At this juncture, the court need not consider the question of whether there was in fact a publication of the alleged slanderous statement.

As to defendant Southside Hospital, appellant maintains that granting summary judgment was improper because issues of material fact existed, as the hospital had a duty to treat appellant and that duty was breached when appellant was wrongfully discharged from the hospital before he was cured. In support of the existence of this duty, appellant cites Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 34 N.E.2d 367 (1941) as authority for the proposition that a hospital has a duty not to discharge a patient prematurely and abandon the case. We do not believe Meiselman to be apposite to the facts in this case.

In Meiselman, an eight year old boy who was desperately ill required hospitalization. After a blood transfusion and an operation on both legs, a bone infection set in. The hospital demanded payment from the boy's father, who was unable to pay the bill, so the boy was discharged. The court, in holding the hospital and physicians liable for the boy's crippled condition, said the jury could have found that the hospital 'had prematurely and willfully discharged themselves from attention to the...