Pegler v. Sullivan

• Citation: 6 Ariz.App. 338,432 P.2d 593
• Decision Date: 24 October 1967
• Docket Number: CA-CIV
• Parties: Westbrook PEGLER and Maud Pegler, husband and wife, Appellants, v. Ed SULLIVAN and Random House, Inc., a corporation, Appellees. 2393.
• Court: Court of Appeals of Arizona

Page 593

432 P.2d 593

6 Ariz.App. 338

Westbrook PEGLER and Maud Pegler, husband and wife, Appellants, v. Ed SULLIVAN and Random House, Inc., a corporation, Appellees.

2 CA-CIV 393.

Court of Appeals of Arizona.

Oct. 24, 1967.

Rehearing Denied Nov. 15, 1967.

Review Denied Dec. 12, 1967.

Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for appellants.

Chandler, Tullar, Udall & Richmond, by Thomas Chandler, Tucson, for appellees.

JACK G. MARKS, Superior Court Judge.

This is an appeal by the plaintiffs Westbrook Pegler and his wife Maud from an amended order and judgment of the superior court of Pima County dismissing their complaint against two of the defendants--Ed Sullivan and Random House, Inc., a New York corporation--on the ground of insufficiency of the service of process. The defendant Random House, Inc. (hereinafter sometimes called Random House) was served in New York City, New York, by United States registered mail on January 22, 1965, and, thereafter, on March 8, 1965, the defendant Ed Sullivan (hereinafter sometimes called Sullivan) was personally served with process by a deputy sheriff in the same city.

Although the attack of each of these defendants was in the form of a motion to dismiss the complaint on the ground of insufficiency of service of process (Rule 12(b)(5), Rules of Civil Procedure, 16 A.R.S.) we treat them as motions to dismiss the complaint for lack of jurisdiction over the person. (Rule 12(b) (2), Rules of Civil Procedure). Taylor v. Portland Paramount Corporation, 9th Cir., 383 F.2d 634, decided September 12, 1967.

As to each of these motions the plaintiffs (hereinafter sometimes called Pegler) asserting jurisdiction have the burden of establishing it since their allegations have been challenged. The facts, and not the allegations of the complaint, must be the touchstone. Taylor v. Portland Paramount Corporation, supra. However, for the purposes of this appeal the defendants in oral argument in this court disclaimed any contention that the plaintiffs had any burden to establish the allegations in their complaint that a telecast occurred which under Arizona law would be an invasion of the right of privacy. A suggestion was made that this telecast might be privileged, but no attempt has been made to factually establish a privilege. Accordingly, we have accepted as true, for the purposes of this opinion, the allegations that Sullivan and Random House caused acts to occur which under our law constitute an invasion of the right of privacy as more fully hereinafter described.

The uncontested facts before the superior court may be summarized as follows: On January 26, 1964, in New York City the 'Ed Sullivan Show,' which was telecast nationwide, presented a certain stage play entitled 'A Case of Libel,' written by the defendant Henry Denker, published by the defendant Random House, Inc., and transmitted to Arizona by the defendant Columbia Broadcasting System, a New York corporation, and, to television screens in Tucson, Pima County, Arizona, by the defendant Old Pueblo Broadcasting Company, an Arizona corporation, the owner of station KOLD-TV in Tucson.

As a direct result of this telecast the plaintiffs, who are residents of Pima County, Arizona, and were residents thereof on January 26, 1964, commenced the instant action alleging an invasion of the right of privacy of Westbrook Pegler ¹ against Sullivan, Random House, and other defendants.

The service of process with respect to Sullivan and Random House in each instance was pursuant to the provisions of Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S. ² In support of its motion Random House, by its treasurer, submitted an affidavit asserting that it is a New York corporation with its principal office in New York City, that the corporation is not doing business nor is it qualified to do business in Arizona, that it maintains no office and no bank account or assets in this state except sums due from its customers in Arizona who may have purchased books from Random House, that none of its corporate books or books of account are kept in Arizona, that no employee resides in Arizona, that two employees travel in Arizona semiannually interviewing college professors and other potential customers and that orders taken in Arizona are subject to acceptance or rejection by Random House at its home office in New York City. In like manner Sullivan, by affidavit, stated that he is a citizen and resident of New York, that he owns no real or personal property in Arizona (including, particularly, no bank accounts and choses in action), that the 'Ed Sullivan Show' originates in New York City and has never originated in Arizona, and, specifically, that the show on January 26, 1964, originated in New York City.

There are three issues to be determined by this court:

1. Did the defendant Ed Sullivan cause 'an event to occur' ³ in Arizona out of which the claim against him arose?

2. Did the defendant Random House, Inc., cause 'an event to occur' in Arizona out of which the claim against it arose?

3. If one or both of the said defendants did cause 'an event to occur' in Arizona, did the service of process in this action upon the said defendants, or either of them, deny to them, or either of them, due process of law?

Rule 4(e)(2), supra, is known as the 'long arm' rule, comparable to the long arm statutes and rules of sister states. It provides for two methods of service of process outside of Arizona with the same effect as personal service within the state. Each of the appellees was served as authorized by the rule which has been held to be within the rule-making power of our Supreme Court. Heat Pump Equipment Co. v. Glen Alden Corp., 93 Ariz. 361, 380 P.2d 1016 (1963). Furthermore the efficacy of each mode of service has been held to be identical to service within this state provided the defendants have had 'minimum contacts' with Arizona. Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732 (1966); Bekins v. Huish, 1 Ariz.App. 258, 401 P.2d 743 (1965); Excutive Properties, Inc. v. Sherman, 223 F.Supp. 1011 (D.C.Ariz.1963).

To determine whether Sullivan caused an event to occur in this state an analysis of the tort action for invasion of the right of privacy is required, for, unless we first determine where the injuries allegedly suffered by Pegler occurred, we cannot determine whether an event occurred in Arizona which would justify the service of process upon Sullivan and Random House in New York. ⁴

In Arizona an action for the invasion of the right of privacy is recognized. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945). Our Supreme Court in Reed, supra, has held this action to be for an injury to the person rather than one involving property or contract rights. The claim of the plaintiffs is for damages arising from mental pain and annoyance to Westbrook Pegler resulting from the unauthorized publication of the play entitled 'A Case of Libel.' The gravamen of the action is '* * * the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication.' 63 Ariz. at 305, 162 P.2d at 139. Furthermore, describing the nature of the action, our Supreme Court held:

'* * * recovery may be had for an invasion of the right of privacy for injured feelings alone, the wrongs redressed must be considered as a direct rather than an indirect injury and one that is wholly personal in character, not depending on any effect which the publication may have on the standing of the individual in the community. It seems to us that the mind of an individual, his feelings and mental processes, are as much a part of his person as his observable physical members. An injury, therefore, which affects his sensibilities is equally an injury to the person as an injury to the body would be. In that respect a cause of action for the violation of the right of privacy, causing mental suffering to the plaintiff, is an injury to the person. * * *' 63 Ariz. at 306, 162 P.2d at 139.

Thus, the only place that the 'event' could occur is where Mr. Pegler resided...