[76 Ariz. 336] Moore & Moore, Phoenix, for appellant.
Gust, Rosenfeld, Divelbess & Robinette, Phoenix, for appellee.
This is an appeal from a judgment of the superior court of Maricopa County denying plaintiff's claim for damages on account of an alleged publication made concerning him, and from an order denying plaintiff's motion for a new trial. The parties will hereinafter be referred to as plaintiff and defendant as they appeared in the superior court.
The facts are that on September 14, 1951, defendant published in the Arizona Republic a picture of a dead dog chained to a post beneath which was a comment to the effect that the dog, man's best friend, had died of heat, thirst and starvation while chained to the post and that the neighbors blamed its master for its death, and that the humane officers were looking for its owner, vowing that they would 'prosecute him as far as possible for the terrible cruel thing he has done,' etc. Following this publication, on September 16, 17 and 18, there was published each day a letter from different citizens who had read the above article. In these letters they criticized the owner of the dog and the neighbors for permitting it to die.
Thereafter plaintiff filed this action alleging that said publication was false and defamatory and by reason thereof plaintiff had suffered actual damages in the sum of $25,000 and in addition thereto asked for punitive damages in a like amount. The defendant entered a general denial to plaintiff's complaint, and specifically denied that said publication was false. Thereafter during the trial it filed an amended answer adding paragraph 6 thereto to the effect
that the article published in defendant's paper of which complaint was made was a fair report of a matter of public interest and was made by defendant in good faith without malice and with an honest belief of its truth. The amendment was filed with the permission of the court and over the objection of plaintiff. According to defendant's brief, paragraph 6 is intended as an affirmative defense of qualified privilege. The cause was tried to a jury and as above stated, verdict was rendered for defendant upon which the court ordered the entry of judgment.
In prosecuting his appeal to this court plaintiff has presented 14 assignments of error. We will consider them in the manner[76 Ariz. 337] we deem most appropriate. Assignment No. 1 is based upon denial of plaintiff's motion for judgment at the beginning of the trial for compensatory damages and that the issues be limited to the amount thereof, and as to whether plaintiff was also entitled to punitive damages upon the ground that defendant's answer did not raise any issue with reference to the liability of defendant, inasmuch as defendant admitted the publication of the article which is libelous per se and therefore presumed to be false and malicious.
We are not in accord with this contention. Had plaintiff intended to attempt a limitation of the issues to damages he should have invoked the provisions of rules 56(a), 56(c) and 56(d), sections 21-1210, 21-1212, 21-1213, A.C.A.1939, A.C.A.Supp.1952, relating to summary judgments. Those sections provide for a judgment in plaintiff's favor as to all or any part of the issues upon which his claim is based. Before a judgment of that character may be rendered however, ten days' notice must be served upon the adverse party giving it the opportunity to meet the question raised. We believe the remedy provided for in the above rules is exclusive. This view seems to be buttressed with logic when considered in connection with rules 15(a) and 15(b), sections 21-448 and 21-449, A.C.A.1939, providing that leave to amend shall be freely given when justice requires. In the instant case defendant had the right to amend its pleadings at any time, at least, during the course of the trial upon leave of the court if justice required and it was not an abuse of discretion to permit defendant's amendment adding paragraph 6 to its original answer after both plaintiff and defendant had presented their case in chief. The only evidence thereafter received was from a rebuttal witness presented by plaintiff.
What we said with respect to assignment No. 1 applies equally to assignment No. 2, based upon the same grounds.
It is the law of this state that if a publication in a newspaper
"* * * tends to bring any person into disrepute, contempt, or ridicule, or * * * to impeach his honesty, integrity, virtue or reputation,' and is false and defamatory, it constitutes a libel on him. * * *' Central Arizona Light & Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126, 131. Section 43-3501, A.C.A.1939.
and is actionable per se. It is the law in practically every jurisdiction that where any publication concerning another charges the other in substance with a crime, that such publication is actionable per se. It is further the law in this state and elsewhere that if the language charged to be libelous is unambiguous it is the function of the court to say whether it is libelous per se. If it is ambiguous or susceptible to more than one interpretation it is the province of the jury under proper instruction from the court to determine whether it is defamatory. [76 Ariz. 338] Central Arizona Light & Power Co. v. Akers, supra, and cases cited therein. We find no ambiguity in the language used in the publication under consideration and therefore as a matter of law hold that it is libelous per se.
We further held in the Akers case, supra, that
'* * * Every publication falling within the statutory definition of libel is actionable per se, and upon proof of publication the law presumes its falsity and ...