Roscoe v. Schoolitz

• Decision Date: 24 June 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 10 Ariz.App. 41,455 P.2d 991
• Parties: Jerome E. ROSCOE, Appellant, v. Harry SCHOOLITZ, Jr., as Special Administrator of the Estate of James Robert Sudderth; David Solomont, et ux., et al., Appellees. 657.
• Court: Arizona Court of Appeals

Page 991

455 P.2d 991

10 Ariz.App. 41

Jerome E. ROSCOE, Appellant, v. Harry SCHOOLITZ, Jr., as Special Administrator of the Estate of James Robert Sudderth; David Solomont, et ux., et al., Appellees.

No. 1 CA-CIV 657.

Court of Appeals of Arizona.

June 24, 1969.

Rehearing Denied July 29, 1969.

Giles, Zielinski & Thur, by Gordon B. Giles, Scottsdale, Marlowe, States, Meyer & Vucichevich, by P. Richard Meyer, Phoenix, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Frank A. Parks, Harrison, Strick & Myers, by Mark I. Harrison, Phoenix, for appellees.

CAMERON, Judge.

This is an appeal from an order granting a new trial after a jury verdict in favor of the plaintiff Jerome R. Roscoe.

We are called upon the determine whether the instructions on qualified privilege given by the court were correct.

The facts necessary for a determination of this matter on appeal are as follows. Plaintiff-appellant, Jerome R. Roscoe, a farmer, was married to Allie 'Cathy' Roscoe. The plaintiff's previous wife had died and he had been married to Cathy Roscoe for some 5 years when, late in 1963, Cathy Roscoe became suspicious of plaintiff's activities and employed the defendant, Arizona State Guard and Detective Agency to investigate plaintiff's activities. Defendant, David Solomont, worked for the agency under the supervision of James Sudderth.

After several attempts to obtain evidence against plaintiff, a report (Number 15) was finally given by the agency to Cathy Roscoe which indicated that the plaintiff had committed an act of adultery in the back of a pickup truck while it was parked in a cluster of bushes on plaintiff's farm land near Scottsdale, Arizona. The day after Cathy Roscoe received the report she sued plaintiff for divorce. The divorce action was contested by the plaintiff. The wife testified in the divorce proceedings that the sole reason she filed for the divorce was the report of the defendant. The divorce was granted and plaintiff sued defendants for libel, slander, and alienation of affection.

The matter was tried to a jury and at the settling of the instructions the defendant requested that the jury be instructed as a matter of law that a qualified privilege did exist. This was denied and instructions were given at defendant's request which allowed the jury to determine the question of qualified privilege itself:

'You are instructed that one of the privileged communications of defamatory matter is known as a qualifiedly privileged communication. This is a published privileged communication where circumstances exist or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to another person in the performance of a duty. Expressed in another manner, it is a communication made in good faith on any subject matter in which the person communicating has an interest or in reference to which he has a duty, and the same is privileged if it is made to a person having a corresponding interest, even though it contains matter which, without this privilege, would be actionable and, although the duty is not a legal one but only a moral or social duty. If you find from a preponderance of the evidence that Allie Catherine Roscoe in fact employed the defendant in this case to follow and surveil her husband, plaintiff herein, and to report what they found, and if you further find that the report here in question was made to Allie Catherine Roscoe, being a person having an interest in the matters, and defendant also having an interest in the matter by virtue of its employment, and you further find that the defendant by virtue of its employment had a duty to make such a report and that the communication was made in good faith, then you are instructed that the report is qualifiedly privileged.'

The jury returned a verdict of $40,000 compensatory damages and $15,000 punitive damages and defendants moved for a new trial.

The appellees maintained on the motion for new trial that the trial judge committed reversible error in failing to rule as a matter of law that Report 15 was qualifiedly privileged. The trial judge agreed and granted a new trial.

Assuming as we must that the statements contained in the report Number 15 were untrue and defamatory does not mean that the plaintiff...