Todd v. Cox, 1

• Decision Date: 07 August 1973
• Docket Number: No. 1,CA-CIV,1
• Citation: 20 Ariz.App. 347,512 P.2d 1234
• Parties: Richard TODD, Appellant, v. Stephen L. COX and Kay K. Cox, his wife, Appellees. 1894.
• Court: Arizona Court of Appeals

Page 1234

512 P.2d 1234

20 Ariz.App. 347

Richard TODD, Appellant, v. Stephen L. COX and Kay K. Cox, his wife, Appellees.

No. 1 CA-CIV. 1894.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 7, 1973.

Healy & Beal, P.C., by William T. Healy, Tucson, for appellant.

Cox & Cox, by Alfred S. Cox, Phoenix, for appellees.

HAIRE, Judge.

The only question presented on this appeal in a libel action is whether the affidavit testimony of defendant-appellee Stephen L. Cox was absolutely privileged as a statement made in the course of a judicial proceeding. The trial judge was of the opinion that it was, and therefore granted defendant Cox's motion for summary judgment.

The appellant-plaintiff Richard Todd, was a prosecution witness in the case of State v. Brazil, Maricopa County Superior Court No. CR--60857. Brazil's attorneys believed that Brazil's conviction was in part due to Todd's testimony. Brazil's attorneys contacted several other attorneys who had participated in trials in which Todd had testified as a witness, and requested that if they had an opinion of Todd's reputation for truth and veracity they furnish affidavits to be incorporated as exhibits to Brazil's motion for a new trial. Defendant Cox was one of the attorneys so contracted. Cox's affidavit attached to his motion for summary judgment states that he believed that his testimony of his knowledge of Todd's reputation for truth and veracity was pertinent and relevant to the issue of Todd's credibility which Brazil's attorneys intended to raise in their motion for new trial. His affidavit, in pertinent part, reads as follows:

'STEPHEN COX, being sworn on oath, deposes and says:

'1. I am an attorney licensed to practice in the State of Arizona. Prior to entering private practice I was a public defender for Maricopa County.

'2. I have had an opportunity to become aware of Officer Richard Todd's reputation for truth and veracity. On one occasion while I was in the public defender's office he lied on the stand. He lacks a reputation for truth and veracity and has a reputation of being a smooth liar.

/s/ Stephen L. Cox'

This affidavit was attached to Brazil's subsequently filed motion for new trial made on the grounds of 'newly discovered evidence'.

Prior to making this motion for new trial, Brazil's conviction had been appealed to this Court. See State v. Brazil, 18 Ariz.App. 545, 504 P.2d 76 (1973). The motion for new trial was accordingly attached to and incorporated into a 'Motion to Remand to the Trial Court for a Hearing on Newly Discovered Evidence' which was filed in the Brazil appeal. It was contended that the newly discovered evidence would show that Brazil was actually 'framed' by Officer Todd who was out to 'get him'. This Court granted Brazil's motion to remand, and the motion for new trial was then filed in the trial court. Besides the affidavit of defendant Cox and several additional affidavits of similar character, other affidavits were attached to the motion for new trial purporting to show newly discovered evidence directly contradicting portions of Todd's testimony.

In Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519 (1971), we held that in a libel action a Party to judicial proceedings was entitled to assert the defense of absolute privilege under the conditions set forth in § 587, Restatement of Torts, Vol. 3 p. 231. Thereafter, in Melton v. Slonsky, 19 Ariz.App. 65, 504 P.2d 1288 (1973), we refused to extend this absolute privilege defense so as to include a Witness in a hearing before the Arizona State Liquor Board, but we did hold that such a witness was entitled to assert a qualified privilege defense. We must now decide whether, and under what circumstances, a Witness giving testimony In a judicial proceeding is entitled to the protective umbrella afforded by the defense of absolute privilege, and if entitled to such protection, whether under the facts here presented, defendant-appellee Cox is such a witness.

Although we find no prior Arizona authority directly in point, we find the reasoning set forth in Stewart v. Fahey, Supra, in support of the granting of absolute privilege to a Party, highly persuasive. There we stated:

'At common law, parties to judicial proceedings were granted an absolute privilege to use defamatory language because of the overriding public interest that persons should speak freely and fearlessly in litigation, 'uninfluenced by the possibility of being brought to account in an action for defamation. " (Citations omitted). 14 Ariz.App. at 150, 151, 481 P.2d at 521.

This same view has been adopted by the Restatement of Torts in § 588 as follows:

'A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying, if it has some relation thereto.

'Comment:

'a. The function of witnesses is of fundamental importance in the administration of justice. The final judgment of the tribunal must be based upon the facts as shown by their testimony, and it is necessary therefore that a full disclosure be not hampered by fear of private suits for defamation.'

See also, 50 Am.Jur.2d, Libel and Slander, § 249, p. 766, to the effect that this is the generally accepted view in the United States.

Assuming, as stated in Restatement § 588, Supra, that a 'witness' is absolutely privileged when 'he is testifying' in a judicial proceeding, the next question to be determined is whether defendant Cox was a witness testifying in a judicial proceeding when he submitted the affidavit here involved. We hold that he was.

Without question the subject proceeding in the Maricopa County Superior Court was a judicial proceeding in the strictest sense. Considering next whether Cox's affidavit constituted testimony, Rule 312, Rules of Criminal Procedure, 17 A.R.S., which governs the presentation of evidence on a motion for new trial in a criminal proceeding, provides as follows:

'Where a motion for new trial requires the determination of any question of fact, the court may hear evidence on the motion by affidavit or otherwise.'

This rule specifically authorizes the use of affidavits for the presentation of evidence on the motion for new trial. ¹ Under these circumstances the fact that Cox's testimony is written in affidavit form as authorized by Rule 312, rather than being in oral form, does not render Cox any the less a witness nor does it preclude his affidavit from being considered as testimony. Bearing these facts in mind, we are of the opinion that the same considerations of public policy which confer an absolute privilege upon a person testifying in open court are applicable to one testifying by affidavit. We are not unique in adopting this view. See Buschbaum v. Heriot, 5 Ga.App. 521, 63 S.E. 645 (1909); King v. Hildebrandt, 331 F.2d 476 (2d Cir. 1964); Williams v. Williams, 169 F.Supp. 860 (D.D.C. 1958); Conley v. Key, 98 Ga. 115, 25 S.E. 914 (1896); Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281 (1942); Burke v. Ryan, 36 La.Ann. 951 (1884); Middlesex Concrete Products and Excavating Corp. v. Carteret Industrial Association, 68 N.J.Super. 85, 172 A.2d 22 (1961); Jarman v. Offutt, 239 N.C. 468,...