Phoenix Newspapers, Inc. v. Choisser
| Decision Date | 31 May 1957 |
| Docket Number | No. 6214,6214 |
| Parties | PHOENIX NEWSPAPERS, Inc., a corporation, Appellant, v. Jack CHOISSER, K. S. Brown, Doug Carr, J. R. Day, Jacob Klein, W. P. Lemon and John Metheany, each individually, Appellees. |
| Court | Arizona Supreme Court |
Gust, Rosenfeld, Divelbess, & Robinette, Phoenix, for appellant.
Struckmeyer, Whitney & Perry, Phoenix, for appellees.
This is an appeal from a judgment for damages, actual and punitive, in favor of appellees and against appellant aggregating $154,000, and from an order denying appellant's motion for judgment n.o.v. and its motion for a new trial. Appellant will be hereinafter referred to as defendant and appellees as plaintiffs.
The judgment from which the appeal is prosecuted is based upon the publication of an alleged libelous article appearing November 5, 1953, in the Arizona Republic, a daily newspaper owned and published by defendant.
On the previous evening an open forum type meeting was held by the Phoenix Junior Chamber of Commerce. All candidates for mayor and councilmen of the City of Phoenix for the 1953 city elecion were invited. The plaintiffs herein were running on the 'Economy Ticket' opposed to what was termed the 'Charter Government' ticket. Present at the meeting were also two candidates running as independents. The article appeared on page one of the Arizona Republic and in so far as here material read as follows:
'Economy-Vice Tieup Denied
Candidates Clash at Forum
'By Jack Karie
'Opposing candidates in the forthcoming city election collided head-on last night over the issue of prostitution and gambling.
'Charter Government candidates, seeking to retain the present city administration in office, declared they feared relaxation of present controls on vice within the city if members of the Economy Ticket gained power Nov. 10.
K. S. Brown of the Economy ticket heatedly denied any such danger exists and demanded an apology from Adam Diaz. He failed to get one.
'The Exchange was one of many as the Phoenix Junior Chamber of Commerce played host to the opposing tickets and two independents in a forum designed to define the issues in the heated campaign.
'Present were Mayor Candidate Frank G. Murphy and other Charter aspirants for city council. John F. Sullivan, Margaret B. Kober, Newton Rosenzweig, Clarence H. Shivvers, Wesley Johnson, and Diaz.
'Jack Choisser, mayor candidate for the Economy Ticket, was backed by council hopefuls, Doug Carr, Jack Klein, John A. Metheany, and Brown.
'Independents present were Thomas E. Bruns and Peter Forskin.
'Diaz set off the fireworks when he said,
'Brown, fighting mad, demanded an apology and asserted:
'Brown challenged the Jaycees or anyone else to check his and other Economy ticket candidates' backgrounds.
'Sullivan added fuel to the fires when he claimed that the same gang who formerly bossed the city hall was supporting the opposition.
'What Is This Economy Ticket talking about, the economy of the citizens of Phoenix or the economy of the bosses?' Sullivan asked. 'Prostitutes ran wild when we were elected to office four years ago and the city was operating at a loss of $300,000 annually."
On the following day the plaintiffs sued the defendant claiming the publication was false and misleading and libelous per se in that it charged the plaintiffs with conspiring to bring about the establishment of vice conditions in Phoenix, and relaxing the enforcement of the state and city laws aginst prostitution and other vice conditions, and that the article was published maliciously with the intent to injure the plaintiffs in their professional business and political standing.
Uncontradicted testimony at the trial shows that Adam Diaz in his talk before the meeting stated:
Whereas, the article complained of stated:
'Diaz set off the fireworks when he said 'I've heard that Economy Ticket candidates have promised the city will be opened up to prostitutes and gambling if they are elected. If such a thing happens I fear for my children."
The publication further stated:
'Charter Government candidates, seeking to retain the present city administration in office, declared they feared relaxation of present controls on vice within the city if members on the Economy Ticket gained power Nov. 10.'
In addition to the above, many editorials were put in evidence showing the stand that the defendant took on the election favoring the Charter group. The plaintiffs claimed that the article was not true, was misleading, and was maliciously published.
In its appeal the defendant has presented thirteen assignments of error, all of which are based upon the giving of instructions over the objection of defendant, or the refusal to give instructions requested by defendant. We will refer to only those necessary for determination of the case. The first question thus raised deals with the proposition: Was the publication libelous per se or per quod?
In seeking the answer to the above question the entire article must be considered as a whole. Schy v. Hearst Pub. Co., 7 Cir., 205 F.2d 750; Mortensen v. Los Angeles Examiner, 112 Cal.App. 194, 296 P. 927. This is true not only with reference to its exact language but in accordance with its sense and meaning under all the circumstances surrounding its publication. Kinsey v. Real Detective Pub Co., 52 Ariz. 353, 80 P.2d 964; Central Arizona Light & Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126. What meaning was conveyed to those who read the article in question?
We believe it proper to observe here that the article appearing in the Arizona Republic of which complaint is made, is a fair interpretaion of the language used by candidate Diaz when he said that 'there are rumors that some of the opposition (Economy Ticket) and their supporters have made promises that if they are elected the town will be opened up * * *.' The statement that a city will be opened up immediately suggests to the mind of the ordinary person that 'prostitution and gambling' will exist without restraint in such city as they constitute the major vices of any city. Plaintiff K. S. Brown of the Economy Ticket so construed it and stated he 'would never stand for prostitution or antying of that type if elected.' It was he who first injected into the debate any specific reference to prostitution.
In Arizona it is the law that if a publication tends to bring any person into disrepute, contempt, or ridicule or-to impeach his honesty, integrity, virtue or reputation, and is false and defamatory, it constitutes a libel on him. Broking v. Phoenix Newspapers, 76 Ariz. 334, 264 P.2d 413, 39 A.L.R.2d 1382; Central Arizona Light & Power Co. v. Akers, supra; A.R.S. § 13-351.
In the case at hand it might be well to repeat a portion of the article in question at this time:
'Diaz set off the fireworks when he said, 'I've heard that Economy Ticket candidates have promised the city will be opened up to prostitutes and gambling bling if they were elected. If such a thing happens I fear for my children."
It is without doubt that any meaning attached to the above article, in light of what we have herefore said, would tend to bring the candidates on the Economy Ticket into disrepute, contempt, and ridicule. It would tend to impeach their honesty, integrity and reputation, and constitutes libel per se. Therefore, the publication...
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