Rosenzweig & Sons, Jewelers Inc. v. Jones

• Decision Date: 09 October 1937
• Docket Number: Civil 3768
• Citation: 50 Ariz. 302,72 P.2d 417
• Parties: ROSENZWEIG & SONS, JEWELERS INC., a Corporation, Appellant, v. E. W. JONES, Appellee
• Court: Arizona Supreme Court

72 P.2d 417

50 Ariz. 302

ROSENZWEIG & SONS, JEWELERS INC., a Corporation, Appellant, v. E. W. JONES, Appellee

Civil No. 3768

Supreme Court of Arizona

October 9, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed.

Libel action by E. W. Jones against Rosenzweig & Sons, Jewelers Inc., and others. Judgment for plaintiff against the named defendant, and the named defendant appeals.

Reversed and remanded, with instructions to enter judgment in favor of the named defendant.

LOCKWOOD, J., dissenting in part.

Messrs Cunningham & Carson, for Appellant.

Mr. Mark B. Wilmer and Mr. James A. Walsh, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from a judgment giving damages for an alleged libel in favor of E. W. Jones, hereinafter called plaintiff, against Rosenzweig & Sons, Jewelers, Inc., a corporation, hereinafter called the company.

There are some seven specific assignments of error, but we think the case can and should be determined on certain general questions of law raised thereby. The facts necessary for a determination of the case may be stated as follows.

For some four years plaintiff was employed by the company as the manager of a jewelry store in Mesa, and had executed a fidelity bond in its favor with the Fidelity & Deposit Company of Maryland as surety. On May 18, 1934, he was discharged from his employment, and Max Reiter was substituted by the company as manager. On the 1st day of October of that year the company, acting through Harry Rosenzweig, I. Rosenzweig, and Newton Rosenzweig, who were the managing officers of the company, filed with the surety a claim under the bond above referred to, for a loss in the sum of $315, alleging in the claim that certain moneys and articles received by Jones, but which the company either owned or was responsible for, had been "misappropriated by the said E. W. Jones to his own use and benefit with the intent to fraudulently deprive the said Rosenzweig & Sons, Jewelers, Inc., of same." The surety, acting in the regular course of business, notified plaintiff of this charge against him, and thereafter he brought suit against the company, the three Rosenzweigs, and Max Reiter, his successor as manager of the Mesa store of the company, for damages for libel.

The case was tried to a jury, and it appeared in plaintiff's case beyond contradiction that Max Reiter had no knowledge of, nor part in, the making of the claim to the surety, nor that there was any intention on the part of the company to make such a claim, although much testimony had been offered by plaintiff tending to show that Reiter had made various statements to third parties in regard to plaintiff, from which the jury might infer that he was actuated by a malicious desire to injure plaintiff. The defendants then moved for an instructed verdict in their favor, and particularly for an instructed verdict in favor of the defendant Max Reiter, on the ground the evidence failed to disclose any facts which would sustain a judgment against him, and, the court intimating that it was inclined to grant the motion as to Reiter, the plaintiff moved for a nonsuit as to the latter, which was granted. The motion for judgment in favor of the other defendants, however, was denied. Thereupon counsel for defendants moved to strike from the record all evidence and testimony concerning the statements made by Reiter to third parties in regard to the plaintiff, and, after some discussion, the court made the following ruling:

"... Therefore, the motion is granted, gentlemen of the jury, in so far as it pertains to any statements made of Mr. Reiter, if such statements were made, reflecting upon the honesty or integrity of the plaintiff, Jones, with reference of his stewardship in connection with the management of the business and during the time he was in that capacity or at or immediately after the departure as an employee of the defendant company. You are instructed in your consideration of the case to disregard such statements entirely."

There was no assignment of cross-error by plaintiff as to this ruling, so we must assume it was correct.

The case then proceeded and was finally submitted to the jury, which returned a verdict in favor of the plaintiff and against the company, but returned no verdict against the Rosenzweigs individually. After the usual motion for new trial was made and overruled, this appeal was taken.

There were certain other matters of evidence and proceedings during the trial which we will refer to in their proper place, but the above gives a fair picture of the situation.

The principal reason urged by the company for a reversal of the case may be stated as follows. Assuming that the claim made to the surety company was libelous, in that it charged that plaintiff had committed a felony, it is admitted by both plaintiff and defendants that it was qualifiedly privileged, and that, in order for plaintiff to recover damages against any of the defendants, he must prove not only the publication of the libel, but that it was made maliciously and with intent to injure him. It was, therefore, incumbent upon plaintiff to show, by legal evidence which would authorize the jury to draw such an inference, that the publication of the claim was malicious. A corporation can act only through its officers and agents, and the only method of showing that it was actuated by malice is by the conduct of some, at least, of these officers and agents. Plaintiff recognized this fact and introduced evidence of certain acts and statements by Reiter and the three Rosenzweigs, from which it is contended the jury might reasonably infer malice on their part imputed to the corporation. But, says defendant company, so far as any statements or acts of defendant Reiter reflecting on the honesty or integrity of plaintiff were concerned, the court struck them from the record and ordered the jury to disregard them in its consideration of the case, so that such acts and conduct may not be used to sustain a claim of malice on behalf of the corporation, and, so far as any acts or conduct on the part of the three Rosenzweigs were concerned, since the jury failed to return a verdict against them, and it is admitted that they published the libelous statement, the only theory upon which a verdict in their favor would be legally permissible is that they were not actuated by any malice. If, therefore, no malice appears on the part either of Reiter or the three Rosenzweigs, there is nothing which would sustain a finding that the company itself was guilty of malice.

Let us examine the situation to see if this position is well taken. It is obvious that, since the malice imputed to the company can only be deduced from the acts or statements of some of its agents, if plaintiff fails to show any acts or statements on the part of such agents, from which malice may be reasonably inferred, he has failed to sustain the burden imposed upon him to show actual malice. The court, on motion, struck out all testimony in regard to any statements made by Reiter reflecting upon the honesty or integrity of the plaintiff, Jones. Since there is no assignment of cross-error on this point, we must assume the ruling was correct. Webster v. Parks, 17 Ariz. 383, 153 P. 455; Barth v. A. & B. Schuster Co., 25 Ariz. 546, 220 P. 391. The only evidence which would authorize a jury to even surmise that Reiter had any malice, individually or as an agent of the company, against plaintiff were statements of this nature. There remains, therefore, nothing in the case which would authorize a jury to infer malice on behalf of the company by reason of the conduct of Reiter.

We come then to the acts and statements of the three Rosenzweigs. The testimony as to what they said and did in regard to plaintiff, aside from the actual filing of the claims which is alleged to be libelous, is in considerable conflict, and we think the jury might well have found either way upon the question as to whether or not the evidence showed malice on their part. Since admittedly they were the actual publishers of the libel, if it was done maliciously there was no legal reason justifying the jury in not returning a verdict against them for at least a nominal amount and, therefore, the only excuse for its conduct in that respect must have been that the jurors believed there was no malice on their part. We think that when the verdict of the jury can be sustained only on one theory of the evidence, we must assume that they followed this theory, and that their reasons for choosing this theory were the proper ones. This has been held frequently where the verdict returned was in favor of plaintiff. Miller v. Haley, 38 Ariz. 469, 300 P. 1020; Hilltop Metals M. Co. v. Hall, 29 Ariz. 300, 241 P. 35. And it appears to follow logically that, if there is only one theory of the facts upon which a verdict can be returned in favor of a defendant, we must assume the jury adopted that theory also. We think, therefore, that the jury, by failing to return a verdict against the Rosenzweigs individually, necessarily found that there was no actual malice on their part in the publication of the libel. Since there is no contention that there is any evidence that any employee or agent of the company, except the Rosenzweigs and Reiter, did anything which would justify a finding of malice, it would appear that there is no evidence in the case to sustain this absolutely necessary element, and that the verdict was, therefore, not sustained by the evidence.

There is but one ground, we think, upon which even a plausible argument to the contrary can be made, and that is, that since, as a general proposition of law, where defendants are accused of a joint tort, a jury may...