Roscoe v. Schoolitz

• Decision Date: 22 January 1970
• Docket Number: No. 9761--PR,9761--PR
• Citation: 464 P.2d 333,105 Ariz. 310
• 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.
• Court: Arizona Supreme Court

Page 333

464 P.2d 333

105 Ariz. 310

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. 9761--PR.

Supreme Court of Arizona, In Banc.

Jan. 22, 1970.

Giles, Zielinski & Thur, by Gordon B. Giles, Scottsdale, 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.

HAYS, Justice.

This matter comes before the court on a petition to review the decision of the Court of Appeals. 10 Ariz.App. 41, 455 P.2d 991 (1969). The Court of Appeals' opinion upheld the trial court's order for a new trial, entered following a jury verdict in favor of the plaintiff. Because of matters of first impression herein; we granted review. We affirm the trial court; the opinion of the Court of Appeals is vacated.

A suit was brought by the plaintiff-appellant, Roscoe, alleging a cause of action against the several defendants for libel, slander and alienation of affection. The salient facts, briefly stated are as follows. Plaintiff, Jerome Roscoe, and Allie Catherine Roscoe were husband and wife. In 1963, Mrs. Roscoe, having suspected her husband of infidelity, employed the defendant, Arizona State Guard and Detective Agency, to observe and investigate his activities. On several occasions the plaintiff was followed by investigators in the employ of the detective agency during which time nothing suspicious or incriminating was reported to Mrs. Roscoe. On March 15, 1964, David Solomont, an investigator for the agency, submitted report No. 15 to his supervisor, James Sudderth, who subsequently turned the report over to Mrs. Roscoe. This report contained information which indicated that the plaintiff, Jerome Roscoe, had been witnessed committing an act of adultery in the back of a pick-up truck while parked on plaintiff's farm near Scottsdale, Arizona. The day after Allie Catherine Roscoe received the report she sued her husband for divorce. She testified in the divorce proceeding that the sole reason for filing for divorce was the report of the defendant. The divorce was granted and plaintiff, alleging the report to be a complete fabrication brought this action.

As a defense to the allegations of libel, slander and alienation of affection, the defendants assert the truth of the report and the statements contained therein, and further claim the protection of the doctrine of qualified privilege.

The matter was brought to trial before a jury which returned a verdict for the plaintiff and awarded both compensatory and punitive damages. The defendants, having properly preserved their record of objections to the instructions given by the court on the issue of qualified privilege, moved for a new trial. The trial court, convinced that it had committed reversible error in the instructions to the jury, granted the motion.

The issue as to the instructions concerns the trial court's refusal to instruct the jury that as a matter of law a qualified privilege did exist. It is the position of the defendants that no dispute having been raised concerning the facts and circumstances of the occasion for the publication of the alleged defamatory report, the court was obliged to instruct the jury that, as a matter of law this publication was uttered on a privileged occasion, and that, where such an occasion is shown, this publication should be deemed in the exercise of a qualified or conditional privilege. Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150 (1957).

Within the definition of actionable libel or actionable slander there are imputations of two classes. First there are the words spoken or written which are actionable per se; the second classification is that of words which are actionable only per quod. The distinction is based on a rule of evidence. Vojak v. Jensen, Iowa, 161 N.W.2d 100 (1968):

'Certain statements are held to be libelous per se, which means they are actionable in and of themselves without proof of malice, falsity or damage. In actions based on language not libelous per se, all of these elements must be proved by the plaintiff before recovery can be had, but when the statement is libelous per se they are presumed from the nature of the language used.' At 104.

Such is the definition of libel per se in Arizona. It is set forth in the case of Kinsey v. Real Detective Pub. Co. Inc., 52 Ariz. 353, 80 P.2d 964 (1938), that 'if an article published is such that it obviously 'tends to bring any person into disrepute, contempt or ridicule * * * to impeach his honesty, integrity, virtue or reputation,' and is false or defamatory, it is libelous Per se, and upon proof of publication the law presumes its falsity and that it was published with malicious intent.'

In Broking v. Phoenix Newspapers, Inc., 76 Ariz. 334, 264 P.2d 413 (1953), this court held that with regard to the publication of charges of crimes or criminal acts, such publication is actionable per se.

It is undenied that in the instant case the published agency report contained a charge of criminal as well as marital misconduct, adultery being a felony within the statutes of this state. A.R.S. § 13--221. It further being the law of this state that it is the function of the court to rule whether unambiguous language charged to be libelous is libelous per se or per quod only, an instruction by the court that report No. 15 is libelous per se was required.

'It follows therefore, That unless the publication in the instant case was privileged or qualifiedly privileged, the proof of the publication of the article carried with it the presumption of its falsity and of malice toward the plaintiff and the burden was upon the defendant to prove both the truth of the publication and a back of malice toward plaintiff.' (Emphasis added.) Broking v. Phoenix Newspapers, Inc., at 338, 264 P.2d at 415--416.

Confusion sometimes arises between an 'occasion' of privilege and a 'privileged communication.' It should be clear that whether a communication is conditionally privileged or not is a legal conclusion. Such a conclusion is based on the hypothesis that (1) a privileged occasion exists, and (2) that the occasion for the privilege has not been abused. There may be an occasion of privilege without a privileged communication, but not the latter without the former.

'* * * the orthodox distinction between the privileged character of the occasion and the use or abuse of the occasion gives rise to some difficulty as to the burden of proof as well as the allocation of the respective functions of the judge and jury. The question whether the occasion is privileged is one for the judge and not for the jury and on this issue the burden of proof is on the defendant. Once the occasion is ruled by the judge to be privileged, the question whether it was abused by the defendant is one for the jury, subject only to the usual censorial power of the judge and the burden on the issue is upon the plaintiff.' Harper and James, Law of Torts (1956) Vol. I at 435.

In Arizona an occasion for a publication is conditionally or qualifiedly privileged where circumstances exist which cast upon a defendant the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty. Ross v. State of Arizona, 54 Ariz. 396, 96 P.2d 285 (1939). See also H. E. Crawford Co. v. Dun & Bradstreet, Inc., 241 F.2d 387 and Pavlovsky v. Board of Trade of San Francisco, 171 Cal.App.2d 110, 340 P.2d 63 (1959).

It is the burden of the defendant to establish the existence of the occasion by a preponderance of the evidence; and as stated above, whether the occasion is privileged or not is to be ruled on by the court as a matter of law, except in those cases where the facts of the occasion are in dispute. Phoenix Newspapers v. Choisser, supra; Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964). Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524 (1950).

Having examined the record, we sustain the defendant's position on the issue of the occasion itself, for we find no fact to be in dispute. The facts are that the defendants had represented themselves as private investigators; that Allie Catherine Roscoe did employ this agency to observe her husband and to report to her his activities; and that this report was made to Mrs. Roscoe in fulfillment of an obligation under the employment agreement. Those facts were sufficient for the trial court to rule whether the...