[76 Ariz. 360] Terrance A. Carson, Phoenix, for appellant.
V. L. Hash and Virginia Hash, Phoenix, for appellee.
STANFORD, Chief Justice.
This case, tried before a jury, involving slander and malicious prosecution, was appealed from a judgment for defendant Rice on a directed verdict after the plaintiff had rested his case in the trial court. No motion for a new trial was made; however, the motion for a directed verdict was opposed and argued.
Appellant McClinton, plaintiff below, alleged in his complaint that the appellee had stated to various persons, one being a United States Postal Inspector, that appellant had sent an obscene letter through the mail; that appellee made the statement wilfully, maliciously, without probable cause, and knowing that the statement was false; that as a result of the statement having been made to these persons, the appellant
was indicted by the grand jury of the United States, sitting at Phoenix, Arizona, was confined in the county jail, compelled to give bond, hire counsel, undergo the burden and expense of defending himself on the criminal charge of sending obscene letters through the mail, and, though subsequently acquitted, his reputation has been injured, and the appellee should pay not only actual damages but punitive damages as well.
One procedural matter should be considered before continuing with this opinion. [76 Ariz. 361] Appellee contends that since no motion for a new trial was made, the appellant may not ask this court to consider the sufficiency of the evidence to set aside the directed verdict and judgment below, and he cites section 21-1703, A.C.A.1939, as foreclosing appellant from asking this court to review the evidence. That section reads in part:
'Orders, rulings, and evidence reviewable.--Upon an appeal from a final judgment the Supreme Court shall review any intermediate order involving the merits and necessarily affecting the judgment, and all orders and rulings assigned as error, whether a motion for a new trial was made or not. * * *; on an appeal from a final judgment the Supreme Court shall not, however, consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made.' (Emphasis supplied.)
Appellee cites numerous cases to uphold his view, but all of his cases may be distinguished from the present situation. He bases his contention on reasoning best illustrated by our decision in Putnam v. Putnam, 3 Ariz. 182, 24 P. 320, 322 (Sub nom. Sutherland v. Putnam), decided by the Territorial Court in 1890, where it is said:
'* * * The only relief that appellants ask in this court, and all that this court can grant, is a new trial of the cause in the trial court. If it be true that the evidence is insufficient to warrant the decision, it is error. If it is error, we must presume that the court below would, upon application, have corrected it. If, however, the court below had denied the motion for a new trial, such ruling could have been presented here for review. It is provided by the statute that the only remedy appellants seek here may have been awarded to them by the court below on motion. That method is prompt, efficacious, and inexpensive; and we think the appellants should first resort to it before coming to the appellate court. * * *'
Appellant relies in part upon the reasoning best illustrated by the decision in National Surety Co. v. County of Pinal, 30 Ariz. 383, 247 P. 135, 136, decided in 1926. Here this court said:
'The motion for a new trial was not filed within 10 days after the rendition of judgment as provided by statute. * * * This, it is asserted, was necessary to confer jurisdiction on this court to consider the sufficiency of the evidence to substantiate a verdict or judgment in an action tried before a jury * * *. It may be seriously doubted if it was the intention to apply such rule when, as in this case, the verdict is directed by the court. The reason for the rule would hardly apply, since [76 Ariz. 362] the verdict, while nominally that of the jury, is in fact the conclusion of the court. Paragraph 1231, supra, also provides that we 'shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not.' This is certainly broad enough to cover the court's order directing the verdict. Law v. Smith, 34 Utah 394, 98 P. 300. * * *'
It will be noticed that in the National Surety Co. case above, a motion for a new trial was made, but since it was made late, the court treated it as though it had never been made.
The Putnam decision and the National Surety Co. case are not in conflict. Both cases are based upon the same basic reasoning; and, though section 21-
1703, A.C.A.1939 states the general rule that a motion for a new trial is necessary to bring before this court consideration of the sufficiency or insufficiency of evidence, the legislature did not intend for this statute to prevent an appeal on such grounds in the case under consideration. The purpose of a motion is to obtain a ruling or an order directing that some act be done in favor of the applicant, and the essentials of a motion are that the attention of the court must be called to the particular matter or request, and that the court be given an opportunity to rule as to the matter. See Genardini v. Kline, 21 Ariz. 523, 190 P. 568. Appellee's motion for directed verdict was based upon grounds that appellant had offered insufficient evidence to make a case for the jury. Arguments were made to the court; that sufficiency of the evidence was pointedly before the lower court; therefore, to require a further motion for a new trial to be made in this particular case would be to require a hollow procedure opposed to the reasons and purposes for which section 21-1703 exists; and, we hold that we may consider the sufficiency of the evidence.
As to appellant's only assignment of error and reading it in conjunction with the comments made by the trial judge upon granting the motion for a directed verdict, two broad grounds appear which are actually the salient points in this appeal; (1) Is there evidence, which should have gone to the jury for its consideration, tending to prove the elements of slander, especially slander per se; and (2), is there evidence, which should have gone to the jury for its consideration, tending to prove malicious prosecution; more particularly, was there sufficient proof of the element of want of probable cause?
Condensed, the testimony offered by appellant regarding slander consists of evidence of four conversations. The first was between appellee and one Willie Campbell, several days after appellant's arrest, and appellee, called as an adverse witness ...