Reed v. Real Detective Publishing Company, Inc.

• Decision Date: 25 September 1945
• Docket Number: Civil 4720
• Parties: CHARLES REED, Appellant, v. REAL DETECTIVE PUBLISHING COMPANY, INC., a Corporation, THE CROWELL PUBLISHING COMPANY, a Corporation, HILLMAN BROTHERS, a Corporation, HILLMAN PERIODICALS, INC., a Corporation, SENSATION MAGAZINE, INC., a Corporation, HARRY E. STRONG and GEORGIA MARIE STRONG, Administratrix of the Estate of Harry E. Strong, Deceased, Appellees
• Court: Arizona Supreme Court

162 P.2d 133

63 Ariz. 294

CHARLES REED, Appellant, v. REAL DETECTIVE PUBLISHING COMPANY, INC., a Corporation, THE CROWELL PUBLISHING COMPANY, a Corporation, HILLMAN BROTHERS, a Corporation, HILLMAN PERIODICALS, INC., a Corporation, SENSATION MAGAZINE, INC., a Corporation, HARRY E. STRONG and GEORGIA MARIE STRONG, Administratrix of the Estate of Harry E. Strong, Deceased, Appellees

Civil No. 4720

Supreme Court of Arizona

September 25, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.

Judgment reversed and case remanded with directions.

Mr. V L. Hash, for Appellant.

Mr Blaine B. Shimmel and Mr. Wallace W. Clark, for Appellees.

Morgan J. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Morgan, J.

Plaintiff's amended complaint charged defendants with the publication and circulation of an alleged libelous statement, together with the unauthorized publication and circulation of his photograph. He alleged that the statements were false and defamatory, and that by reason thereof he was injured in his reputation and good name. He further alleged that the use of his photograph, as published in connection with a magazine story of a crime, and not as news, violated his right of privacy, that he was thereby subjected to ridicule and suffered mental pain and annoyance. He prayed for actual and punitive damages in a substantial sum.

Pending the action, but prior to the filing of the amended complaint, one of the original defendants, Harry E. Strong, died. Plaintiff's application to substitute the administratrix of his estate, his widow, Georgia Marie Strong, as a party defendant was denied. While several defendants were named in the complaint, apparently no manner of service was made on any except Hillman Periodicals, Inc., Hillman Brothers, a corporation, and Sensation Magazine, Inc. The service so made was by delivery of a copy of the amended complaint and summons to Georgia Marie Strong, claimed to be the legal agent of these corporations. Hillman Periodicals, Inc., appeared specially and moved to set aside the purported service of summons upon it, on the ground that it was a nonresident corporation, not qualified to transact business in Arizona, that it had never transacted business here, and that Georgia Marie Strong was not its agent for any purpose. This motion was supported by affidavits. Counter affidavits were filed by the plaintiff. The motion was submitted to the court on the showings so made.

From the proofs so submitted it appears that the moving corporate defendant is a foreign corporation which had never qualified to transact business in this state and had not maintained an office in Arizona nor appointed any agent here, and was engaged solely in interstate commerce. It consigned periodicals from points without Arizona to Strong's News Agency, operated by the deceased in his lifetime, and later by the administratrix of his estate -- his widow. On the last day of the month, bills for all magazines shipped were sent to the agency, which was then, before the 10th of the following month, required to pay the wholesaler's purchase price, with the privilege of securing a credit for unsold magazines by the return of the top covers thereof. The court granted the motion to set aside the service, by an order dated December 7, 1943, reading as follows:

"Motions having been taken under advisement, it is ordered granting motion to set aside purported service of summons."

The order denying the substitution of the administratrix was not made until January 17, 1944. Notice of appeal from the above orders is dated and was filed on February 16, 1944. Since this is an appeal by the plaintiff, we will continue to designate the parties as plaintiff and defendants.

By appropriate assignments, plaintiff questions the correctness of the trial court's orders in denying his motion to substitute the administratrix, and in granting the motion to set aside the service as to the corporate defendant. The defendants contend that we are without jurisdiction to pass upon the validity of the court's order in granting the motion to set aside, service, since it is a final order or judgment, and no appeal was taken therefrom until after the elapse of sixty days after its entry.

The issues so presented would appear simple and easy of solution. We find, however, that this garb of innocence is underlaid with a shield of legal thorns. The problem presented is not free from difficulty. The issues involve matters of interest and moment, difficult of solution, requiring more than ordinary exertion and research, and discrimination in the application of the tested rules which must be our yardstick.

It is our view that insofar as the amended complaint states a cause of action for libel, it does not survive. The common law and the prevalent rule is that a pending action or cause of action for libel abates on the death of either the wrongdoer or the person injured, unless it is within a statute providing for survival. Blodgett v. Greenfield, 101 Cal.App. 399, 281 P. 694; Jones v. Matson, 4 Wash. (2d) 659, 104 P.2d 591, 134 A. L. R. 708; Alles v. Interstate Power Co., 176 Okl. 252, 55 P.2d 751; Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A. L. R. 339; Notes, 134 A. L. R. 718, 719; 1 C. J. S., Abatement and Revival, § 145, subsec. d, p. 200.

Our law does not specifically provide for the survival of a cause of action for slander or libel. The common-law rule applies, under the provisions of Sec. 1-106, Arizona Code Annotated 1939. Merrill v. Phelps, 52 Ariz. 526, 84 P.2d 74. The rule is "not repugnant to, or inconsistent with, the Constitution of the United States, or the constitution or laws of this state, or established customs of the people of this state." Sec. 1-106, supra; John W. Masury & Son v. Bisbee Lbr. Co., 49 Ariz. 443, 68 P.2d 679. The only tort actions which are not abated by reason of the death of the defendant are those listed in Sec. 21-534, Arizona Code Annotated 1939, or which may be preserved by other particular statutes.

It is urged by plaintiff that the following provision of Sec. 21-534, supra, should be construed to include an action for libel: "An action to recover damages for injuries to the person . . . shall not abate by reason of the death of the defendant, . . . ." Plaintiff argues forcefully and cites a number of authorities in support of his position that a cause of action for libel is an injury to the person. The weight of authority would appear to be to this effect. Times-Democrat Pub. Co. v. Mozee, 5 Cir., 136 F. 761, 763, 69 C. C. A. 418; Words and Phrases, Perm. Ed., vol. 21; [162 P.2d 137] pp. 461, 464. In the case of Graham v. Mixon, 177 Cal. 88, 169 P. 1003, L. R. A. 1918F, 1023, the California supreme court decided otherwise. It has often been held that "injury to the person" is to be construed as referring to personal injury caused by physical acts, and resulting in physical or mental injury. Resthaven Memorial Cemetery v. Volk, 286 Ky. 291, 150 S.W.2d 908; Sunanday v. McKently, 244 Pa. 533, 90 A. 799; Billingsley v. St. Louis, I. M. & S. R. Co., 84 Ark. 617, 107 S.W. 173, 120 Am. St. Rep. 95; Lucas v. Lucas Ranching Co., 18 Cal.App. (2d) 453, 64 P.2d 160. We think the courts have generally failed to take into consideration that the expression "injuries to the person" and "personal injuries" are not synonymous. In McCaffrey v. Jackson, 23 Pa. Dist. 173, 174, the court makes the distinction, as paraphrased in 43 C. J. S. Injury, note 33, p. 1117:

"In the former, the noun 'person' indicates a natural body, or perhaps a body corporate, and the injuries contemplated are injuries to that body. In the latter phrase the noun employed is 'injury,' and the word 'personal' is merely adjective, and, therefore, of far less significance than when used substantively."

It is commonly understood that an action or cause of action for libel is injury to character or reputation. Black's Law Dict., 3d Ed., 1103; 33 Am. Jur. 38, sec. 3, Libel and Slander. Libel is defined in all dictionaries as a publication tending to blacken or besmirch character or reputation. In ordinary acceptation, libel is considered as relating to character and reputation, as distinct from a wrongful injury to the person. The civil action for libel is not defined by the laws of the state, therefore, in this action the statutory definition of criminal libel may be used as a guide. Central Arizona Light & Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126. Sec. 43-3501, Arizona Code Annotated 1939, in substance, describes the offense of libel as:

". . . any malicious falsehood (or defamation) expressed by writing . . . which tends to bring any person into disrepute, contempt or ridicule, or to blacken the memory of one who is dead; . . . or . . . which tends to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt or ridicule."

As defined in the statute, and as commonly understood and used libel is not to be confused with "injury to the person." Whatever the construction may have been in other jurisdictions, we must give to the meaning of the term as used in Sec. 21-534, supra, the obvious legislative intent. The statutory rule is found in Sec. 1-103, subd. 1, Arizona Code Annotated 1939, "Words and phrases shall be construed and understood according to the common and approved usage of the language; . . . ." The legislature has provided a one-year limitation on actions for "injuries done to the character or reputation of another by libel or slander." Sec. 29-201, Arizona Code Annotated 1939. In the next Section, 29-202, a two-year limitation period is fixed for "injuries done to...