*1 v. CRELLIN THOMAS. July 29, (247 264.)
No. 7763. Decided 1952. P. 2d *2 сharging S., Slander, See 53 C. J. Libel and sec. 231. Statement being Jur., prostitute per woman with 33 Am. a as actionable se. Slander, 38; Libel and sec. 11 A. L. E. 669. Iverson, Fairclough, City, J. Grant Jack for Salt Lake appellant. Duncan, Shields, City, LeBoy
LaMar E. Lake Salt respondent.
CROCKETT, Justice. damages for an action to recover two slanderous This is allegedly con which defendant made to others statemеnts cerning 1949, or One in March of April plaintiff; whore”; the other in October “Mrs. Crellin was “* * * of Mrs. Crellin had worked clearly The former in house prostitution”. se, seemingly would and second also be per
slanderous charge unchastity, as a and was apparently associated meant and The defense asserted is that of so understood. truth.
The case tried twice. The trial first resulted judgment for the which was set aside and a new granted ground newly trial on the discovered evidence. retrial, jury verdict returned a of no cause
Upon action. questions
Plaintiff two on appeal: raises setting First, court abused its discretion in aside judgment granting trial, the first a new instructing Second, jury. that the court erred A As first wide discretion is in the point: reposed granting denying trial court in a new trial on the basis newly discovered evidence. The concern of primary justice done, granting court is that be and the only such a motion reviewable this court on the question Gentile, of abuse of discretion. Greco v. True, judicial 53 P. Utah 2d 1155. the exercise of *3 showing discretion in such be on instance must based evidence, оf substantial material from which it appears there at is least a likelihood reasonable that it would affect 336, the Gray, result in a new trial. See Bowers v. 99 Utah 765; P. Affleck, 381, 106 2d v. Saltas 99 Utah 2d 105 P. 176; Logan 347, City, Jensen v. 89 Utah 57 P. 708. The 2d granting of merely a new trial never should be capricious arbitrary, only judicial but should be done when sound discretion, doing justice in the interest of the bеtween requires. S., so parties, See 66 C. J. New Trial p. § seq. et Defendant’s was that representation informa prior concerning tion was that she had lived at Las Vegas, Nevada, inquiry and that had been made for infor there, mation avail; about the plaintiff to no further working that she did Ely not learn about her in in investigated time so the matter could be and usеd in P., might first trial. Under Rule U. R. C. defendant gotten the information as to where she had lived submitting interrogatories. showing Nevertheless the made was such that say we cannot that the trial court abused its granting discretion in a new trial. the instruction complained to the second point,
As as follows: is you charges truth is an absolute defense in an court “The If, therefore, you slander, as this case. find from a such action any preponderance time in of the evidence that did at prostitution any capacity work in in that her life in a house then against your event verdict must be in favor of the defendant and (Emphasis added.) plaintiff, no cause action.” herein, As to the issues of the applied first sentence instruction is a correct statement of the law. Am. Law See Institute, Torts, Restatement of Sec. 582. The balance the instruction erroneous for reasons hereinafter stated. conclusive, admits,
The evidence is and in fact plaintiff early 1920’s she worked for a time short as girl” girl” “dance hall “percentage the “Green Lan- “Rhiney’s” Ely, Nevada, tern” and a called place both light” of which were in the “red district. The evidence is in conflict as to character of these places.
Illustrative of the evidence defendant’s as to the nature of these establishments and their method of operation testimony of one Harold E. Woods who had worked in locality question at the time in and was famliar with Concerning Rhiney’s Place, the situation. he testified as Question: follows: general reputation morality?”
“What was the Answer: *4 * * good place
“It was a *.”
Question: you say good I “Do understand to place it morality, was a for a good reputation?” Answer: * * * reputation place “It had a was, good for the place. it as a
It good was known as a whorehouse —a one.” floоr, dance there was a at these places that He explained row lined a little rooms adjoining them were bar, and girls” “cribs”, the “crib in which as known the street down as prostitutes; their trade plied * * “* go the dance hall. There was al- there into would We buy you dance with girl to her a drink and ways and ask to come go generally proposition dаncing to you. there was While * ** generally there did because he was fellow most and a crib business.” for that According witness, to have been a de- there seems to this chivalry gree involved the pro- if not actual of protocol, Question: cedure: girl you always go hall and take the out and into dance “Did
down the street to crib?” Answer:
“Yes;” Question: further, you completing your with her “And after interview took back to the dance hall?” Answer:
“Absolutely.”
Contrary this, evidence was that these plaintiff’s although were not houses of places primarily prostitution, adjacent them, it was as shown practiced testi- mony Ely years of W. L. Tuck. He had lived in light had dance halls in the red operated district. His testi- mony was that under the method of opеration, “percen- girls” tage who worked in the dance halls were not supposed they girls, to be hired a prostitutes; “better class” of girls they get,” dancing; the “best could to do the that while working girls” they as “dance hall were not permitted girls”; they work as “crib would dance with the pat-
127 encourage $1; buy cost that them to drinks which rons and water; girl that a drink of colored she would be served from the dance hall oper- received 50c as pay $1 ; hall did not crib employ ator that the dance operator girls girls; handled their own business and the crib girls “they out in their hadn’t better catch the dance hall territory.”
There other to a was considerable evidence as definite girls” distinction the dancе between hall “percentage Plaintiff she prostitutes. denied was ever a prostitute girls”. but her work said one of the “percentage as finding The evidence would have permitted dance halls were also houses of and hence that prostitution, “had worked in a house prostitution” but girl” as a “percentage and not as a Under such рrostitute. finding, the utterance “Mrs. Crellin was a whore” would be false.
Admittedly, justification, when truth is it is pleaded necessary not the literal truth of the prove precise state Slight ment made. inaccuracies are immater expression ial, charge defamatory that the providing true in Torts, substance. Retatement of Sec. Comment (e) ; S., Slander, C. J. Libel and p. 225. § Nevertheless, language just of the utterance referred such meaning, a fixed and certain 45 Words and Phrases, 133, it cannot girl be said that a dance hall who does act as prostitute language, comes within that though may even the dance hall been a house pros may titution or that prostitution have been practiced in connеction with it. quoted
The instruction hereinabove mandatory made it jury upon alleged find that utterance was true if the any plaintiff worked in capacity in a dance hall which was also a house which, of prostitution, course, would include girl. even as a percentage In view of the conflict in the evidence as hereinabove set *6 wrong. was obviously To so instruct
оut, preju- this was for a new accordingly remanded The case error. dicial trial. to appellant.
Costs McDONOUGH, JJ., concur. WADE and (concurring result). HENRIOD, in the Justice on in the main opinion I in the result reached concur ground given I erroneous. was the that the instruction reasoning agree WOLFE’S the Chief Justice also with diligence nec- nature and extent of rеlative to the dissent justify essary a motion for new trial. properly might suggested have omitted It that we respectfully detailing In them we a recital of the in this case. facts of, it and the libel complained place republish emphasize see, for all to and widen the arena for on the printed page necessary, in the the battle of It is nоt opinion words. litigants writer, that the linen of these be laundered here, hung dry nor out to in a volume. In repeating printed injustice good may and the facts we do an to erstwhile friends, honest their families and and new people, open others, wounds before less have had time to heal. painful, The of little facts this case are importanсe people world, recording bring may of the them here well but heart- some, generous easily ache to result we could avoid —a and non-disclosure. sympathetic
WOLFE, (dissenting). Justice Chief my I dissent. In court trial abused its dis- opinion granting cretion in the defendant a I new trial. think diligence she did not as mattter of law exercise reasonable before the first trial to discover and the new evi- produce subsequent dence which discovered was to the first trial which she relied her motion for new upon trial. readily I concede that trial courts have wide discretion in refusing grant trials, granting their new but dis- I not without bounds. For reasons which cretion is out, court it is clear below will hereafter point beyond went those limits.
As to the efforts the defendant to the first trial prior regarding to uncover information the former activities following testimony was adduced: plaintiff, by a The defendant testified that she had been informed friend of “come hers that had from house but her informant did know where the prostitution”, located; house of defendant knew prostitution Utah, Tooele, had lived in resi- present dence, years, for about ten to fifteen and that the house *7 Tooele; of referred to not prostitution in that the plain- tiff on one occasion had her told that she had once lived Vegas, Nevada, near Las and that had she met her husband city 1926; there and that she was in that in the of spring that both the her defendant and had made husband numer- inquiries ous in and around Tooele to ascertain information as to the plaintiff’s former residences her former activities, but there proved efforts fruitless.
The defendant’s husband testified that the had plaintiff ago years remarked his about three four presence that she had Vegas; once lived and was married in Las that against after the plaintiff commenced her action the de- fendant, Vegas he wrote police in Las to department any ascertain whether there was record there of the plain- tiff, but he did not receive a he reply; that thereafter tele- Vegas requesting the Las phoned they police department that any sеarch their records reference to the plaintiff, but they again request; failed to to his respond and that it evening was not until the neigh- after the first trial that a bor of the who he plaintiff, had talked to previously about volunteered plaintiff, which information furnished the discovering lead to of evidence the plaintiff’s employment Ely, Nevada, girl aаs hall dance and upon which evi- dence the defendant relied in her motion for newa trial. that after the plain- testified defendant for the
Counsel only rumors as suit, indefinite he had commenced tiff requested his activities; he that former to the plaintiff’s rumors; investigations that he was as make to client any except concrete informatiоn to obtain unable formerly state lived somewhere had plaintiff alleged slanderous state- Nevada; that he did believe evidence, his true; of his lack of that because ment be had first trial was defense at the main damaged statement; did seriously that he not been interrogator- deposition or serve not take the her former effort to determine places her in an ies upon in Nevada. or activities residences P., 59(a) (4), trial U. R. C. courts empowering Rule ground newly grant discovered evi- new trials upon newly dence, to cases where the dis- restricts power covered evidence diligence, not, with
“could reasonable discovered and [been] produced at thе trial.” right grant ground have no Courts new trials on the diligence” newly discovered evidence without “reasonable being It cannot nor be should that re- proved. presumed quirement lightly. be treated to what “rea- As constitutes diligence” can, course, sonable no definite answer be given. The which a efforts must make he party before has diligencе” vary exercised “reasonable with the individual *8 It cases. has been said that “by diligence appropriate action, reasonable meant where there is inquiry diligence some reason to awaken direct in a channel in City, 414,
which it would be Levi successful.” v. Oklahoma 198 Okl. 465, 179 P. 2d 466. Here, defending the defendant in a slander suit inter- was alleged ested in the рroving truth of the slanderous decla- This, course, ration. of necessitated exploring the into plaintiff’s past activities. She knew that she had at one
181 Yegas, her efforts to secure or Las but time lived in near were resided there unpro her when she information about neighbor after the first trial that a ductive. It was not until the her husband had talked prior оf with whom plaintiff trial, the information which furnished to first volunteered girl dance clue had hall worked as plaintiff course, Ely, defendant, no The of had control Nevada. timing But there was at all times over this disclosure. trial one who knew where the the first prior person during her lifetime. This person had resided have, The defendant could with no cost plaintiff. hersеlf, interrogatories submitted to be concerning by her answered residence past places Following to Rule R. P. employment, pursuant U. C. interrogatories answers such have up would put inquiries defendant on the same track which led her to make Ely by after first trial. The would defendant using discovery this simple method herself with supplied information which she stumbled оnto months later. Until sugges logically has utilized such convenient and party tive means of I think that he not law has discovery, diligence” required exercised the “reasonable Rule (a) (4). seeking ground 59 newly One a new trial on the discovered evidence must show that he and his had counsel knowledge no of evidence or facts which would have put inquiry them on Bradley Kelley, before trial. v.
Vt. A. 554. This is not the case where the accident, details an incident or event become material in a case and the parties who, anyone, do know if accident, witnessed the inci- dent In only event. such notoriety cases of a trial bring may forth the unknown case, witnesses. In the instant such no situation existed. The defendant knew at all times there was one who person could inform her as to the former plaintiff’s places residence and employment. Yet she did not avail herself of that information. If “reasonable diligence” anything means at all it exhausting includes
132 investigation. This logical easily avenues accessible and to do. the defendant failed litigation an end requires that there be
Public interest of enabl- the purpose for a not warranted new trial and he has shown ing evidence unless further to produce party having justifiable produced for not legally excuse some Palmer, v. 59 Cal. trial. Shivers the first at such evidence 572, before the Perhaps adoption P. 2d 952. 139 2d App. no there were Civil Procedure Rules of of the new Utah slight little whereby with effort and could means a party knowledge of facts within on his ascertain part cost discovery But now with broad provi- the other party. litigants, Rules available to particularly of the New sions interrogatories right to the opposing party to submit diligence” 33, to discover evidence “rеasonable under Rule discovery. require utilization of the New Rules on will often greater discovering evidence, hand the means at for The greater by the effort which must be exercised parties diligence”. With the load to constitute “reasonable case constantly in the trial of this this court and courts state increasing, not be should allowed to consume the parties re-trying they of the courts cases because time evidence, they new unless can present discovered meritor- excuse to the court for their failure ious to unearth the In utterly respect, evidence beforehand. this defendant any failed. The record is devoid of reason whatever for interrogаtories her her failure at convenience prepare former as answering. residences submit plaintiff’s them for clearly
She
has
met the burden cast upon
(4)
(a)
diligence”.
Rule 59
show “reasonable
digests
holding
The
are
with
replete
cases
the dis-
covery
ground
after trial of matters of public record
not a
diligent
trial unless
new
on
inquiry
search and
office,
such record was not
proper
discovered. See
368,
v.
Drespel Drespel,
792,
Nev.
45 P.
2d
54 P. 2d
Estate,
In re
Hammer’s
145 Wash.
I would reverse the of the lower court entered on the verdict after the second trial. This would have the reinstating judgment. effect of the first verdict and DAY v. HUB MERCANTILE & PRODUCE CO. et al. August 13, (247 269.)
No. 7477. Decided 1952. P. 2d S., Appeal See 5 C. J. Error, Judgment sec. 1924. in accord- stipulation. ance with Jur., Appeal Am. Error, sec. 1154.