Starkins v. Bateman, 1

• Decision Date: 23 January 1986
• Docket Number: No. 1,CA-CIV,1
• Citation: 724 P.2d 1206,150 Ariz. 537
• Parties: Dennis R. STARKINS, Plaintiff-Appellee, v. Jerry BATEMAN, Jane Doe Bateman, Henry Alcott and Jane Doe Alcott, and the City of Phoenix, a municipal corporation, Defendants-Appellants. 7531.
• Court: Arizona Court of Appeals

Page 1206

724 P.2d 1206

150 Ariz. 537

Dennis R. STARKINS, Plaintiff-Appellee, v. Jerry BATEMAN, Jane Doe Bateman, Henry Alcott and Jane Doe Alcott, and the City of Phoenix, a municipal corporation, Defendants-Appellants.

No. 1 CA-CIV 7531.

Court of Appeals of Arizona Division 1, Department C.

Jan. 23, 1986.

Reconsideration Denied March 31, 1986.

Review Denied Sept. 9, 1986.

[150 Ariz. 539] Jones, Skelton & Hochuli by Edward G. Hochuli, Michael W. Foster, Mark D. Zukowski, Phoenix, for defendants-appellants.

Marton & Hall, P.A. by Kraig J. Marton, Phoenix, for plaintiff-appellee.

OPINION

KLEINSCHMIDT, Judge.

This is an appeal from a judgment for the plaintiff in a defamation action. As required by Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), we must examine the entire record and make an independent decision as to whether there is clear and convincing evidence to support a finding of malice. The case also presents questions about evidentiary rulings, jury instructions, misconduct of counsel, excessiveness of the verdict, and the trial court's denial of a judgment notwithstanding the verdict. A decision on this last issue is, of course, intertwined with the duty prescribed by Bose.

Dennis R. Starkins, who was a Captain in the Phoenix Fire Department, brought this defamation action against Jerry Bateman, Henry Alcott, and Michael Soock, who were his subordinates in the fire department. The defendants had reported to their superiors and repeated to others that Starkins was stealing city gasoline for his personal use from a pump at the fire station where he worked. These charges formed the primary basis for the termination of Starkins' employment with the fire department. The City of Phoenix was also named as a defendant because the defamatory remarks were made by the individual defendants in the course and scope of their employment. No question is raised on appeal as to the propriety of holding the city to answer. Michael Soock was dismissed from the lawsuit prior to trial and is not a party to this appeal. Starkins sought damages for the loss of his job, emotional suffering, the destruction of his marriage, and harm to his reputation.

The jury returned a verdict in favor of Starkins and against Bateman and the City of Phoenix in the amount of $450,000 and against Alcott and the City of Phoenix in the amount of $450,000. The jury also assessed punitive damages against Bateman in the amount of $20,000 and Alcott in the amount of $10,000. The defendants filed a motion for judgment n.o.v. or in the alternative for a new trial. They also filed a motion for a remittitur. The court denied the motion for judgment n.o.v. or new trial and granted the motion for remittitur only as to punitive damages. The court reduced punitive damages to $4,000 against Bateman and to $2,000 against Alcott. The defendants have filed a timely notice of appeal.

An overview of the evidence is of assistance in understanding the issues. Captain Starkins and Fire Fighter Bateman were assigned to the same shift at Fire Station 33. Over a period of time they developed a bitter antipathy for each other. On December 17, 1979, following a disagreement that arose out of Bateman's conduct on an emergency call the two men argued, and Starkins said to Bateman "You are out." Based upon prior discussions between the two, this statement was understood to mean that Bateman would have to transfer from Station 33. Soon thereafter Bateman told another fire fighter, defendant Henry Alcott, that Starkins was stealing gasoline and that he, Bateman, thought somebody else should know about it.

According to Bateman, he first saw Starkins steal gas in October or November of 1979. Then, on December 11, 1979, he saw Starkins near his van with the nozzle to the fire station's gas pump in his hand. Later the same day Starkins confided to Bateman that he had taken some gas and he told Bateman to charge the gas in the gas log to a city vehicle. Bateman said that again, on December 20, Starkins told him that he was going to take some gas. It was then that Bateman told Alcott and another fire fighter, Mike Soock, that Starkins was stealing gas from the city.

Bateman, Alcott and Soock decided to keep a watch on Starkins and, according to Bateman, after they all returned from an emergency call on the evening of December 23, Starkins stole some more gas. On that occasion Starkins' vehicle had been parked near the gas pump, and when Bateman checked the meter on the pump, he determined that 18 gallons were missing. He checked the gasoline log and found that a false entry had been made in the log to cover the missing amount. Shortly afterwards he reported these alleged thefts to the other captain assigned to Station 33.

Henry Alcott testified that Bateman first told him on December 20, 1979, that Starkins was taking gasoline. He said that he saw Starkins' van parked near the pump on that day, that the gas tank cap was off, and the van's fuel gauge was on empty, leading him to conclude that Starkins was intending to take some gas. On December 23, he kept tabs on the gas meter and corroborated Bateman's version that there was an 18 gallon discrepancy after Starkins moved his van away from the pump.

The third accuser, Michael Soock, said that on December 20, he looked out the window of the station and saw Starkins standing near his van with the nozzle to the gas pump in his hand. He also corroborated that the pump reading showed an 18 gallon discrepancy on December 23.

For his part, Starkins flatly denied ever stealing any gasoline or admitting as much to Bateman or anyone else. While his honesty was impugned by evidence that he had once stolen the answers to the battalion chief's examination and that he had indicated on a promotion application that he had a master's degree when in fact the degree had not been awarded, a number of witnesses testified that they considered him to be honest.

DENIAL OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

The defendants argue that Starkins produced no evidence to support the elements of actual malice, that is, that he had produced no evidence that defendants knew their accusations were false or that they acted in reckless disregard of the truth. Normally, in determining whether the trial court should have directed a verdict, this court must view the evidence and inferences therefrom in a light most favorable to the party opposing the motion. Rocky Mountain Fire and Cas. Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 292, 640 P.2d 851, 854 (1982); Bailey v. Montgomery Ward & Co., 6 Ariz.App. 213, 217-18, 431 P.2d 108, 112-13 (1967). Putting aside the standard of review dictated by Bose for the moment, we find the evidence more than sufficient to create jury issues concerning whether Bateman and Alcott acted with actual malice.

The evidence with respect to Bateman's acting with malice included the following: Dennis Starkins testified that Bateman deliberately lied by stating that Starkins had stolen gasoline and had asked Bateman to alter the gas records to conceal the stealing; Starkins testified that Bateman deliberately lied by suggesting to others that Starkins had confided in Bateman on a number of occasions about prior incidents of stealing gasoline; Bateman repeated statements that Starkins was stealing gasoline not merely to his superiors but also to his "close friends"; there was a long history of ill will between Bateman and Starkins; Starkins introduced evidence tending to show that Bateman pumped gas through the meter of the gas tank back into an underground tank to deliberately frame Starkins; in spite of testimony that vehicles other than Starkins' van could have removed gasoline from a tank on the evening in question, Bateman nevertheless told his superiors that it was "totally impossible" because of the position of Starkins' van for any other vehicle to have obtained fuel at that time; Bateman failed to "dip the tank" on the evening in question to determine whether in fact any gasoline had been taken out of the underground tank; and Bateman was aware that there was a long history of poor record keeping with respect to fire department gasoline and that fire department personnel often "juggled the books" to make them balance. Both Bateman and Alcott gave inconsistent statements on different occasions, and their testimony did not always coincide on material points. For example, Bateman could not recall that Starkins had confided to him on December 23 that he was going to steal gas, but he conceded that in earlier statements he had reported such a conversation and had variously said on one occasion that it had occurred after lunch, and on another that it had taken place later in the evening. Bateman had previously given a statement in which he said that he, Alcott, and Soock had all observed a false entry in the gas log on December 23, but at trial he could not say that such was the case. He related in an earlier statement that the other captain assigned to Station 33 first approached him about discrepancies in the gas log. The captain in question contradicted this statement and Bateman, at trial, was not sure which version was correct. He could not remember saying to Chief James A. Walker that "we all steal from the city" although Walker clearly testified that Bateman said this on an occasion when he was remarking to Walker that he hoped that Starkins got what he deserved.

Henry Alcott, in various statements, gave conflicting testimony about when on December 23 he checked the meter on the gas pump. He gave conflicting statements about how long the van was parked by the pump. Evidence was introduced to show that it would have been difficult for Mike Soock to have seen Starkins from the fire house window in a position near the gas pump. Taken together there was sufficient evidence to show that Bateman acted either knowing that his accusation was false or with...