OPINION
Following a jury trial, the appellant herein, Charles Stoll, was found to have maliciously defamed all of the appellees. The seven appellees-plaintiffs, all of whom were at some time connected with the Federal Drug Enforcement Administration (DEA), recovered general and punitive damages against Stoll. 1 All seven claimed damage to their professional reputations as law enforcement personnel resulting from Stoll’s defamation.
The events leading up to this appeal began on November 27,1974, when the Phoenix office of the DEA responded to a tip that a quantity of marijuana was to be dropрed at a remote airstrip near Oatman, Arizona. Several DEA agents and their adjuncts went to Oatman for surveillance and enforcement duties. Upon their arrival they found only one airstrip, privately maintained on a leased mining claim operated by Stoll.
Because the agents did not know the extent of Stoll’s invоlvement, if any, in the marijuana activity, they kept their identity unknown to him. To this end, the agents, dressed in casual clothes, staged a mock search of themselves by local sheriff’s deputies in Stoll’s presence. Stoll was informed by the deputies that the “suspects” had been smoking marijuana.
Stoll was concerned by the presence of these strangers because there had been recent equipment thefts from his mining claim. Fearing more theft, Stoll visited his mine three times on the evening of November 27th. His third visit was prompted in part by a neighbor’s phone call relating unusual activity at the mine. Stoll armed himself with a shotgun, and he and Bob McKenna went to investigate at approximately 10:00 p. m.
Unknown to Stoll, an airplane had in fact landed and deposited 780 pounds of marijuana on the airstrip. The agents observed this, made arrests, and returned to load the marijuana in a truck for transportation to Phoenix. They had forced open Stoll’s gate and were about tо load the marijuana when Stoll arrived with his shotgun. A confrontation ensued.
Stoll was indicted by the grand jury, tried in federal court on the charge, and was convicted of felonious assault on federal agents. His conviction was affirmed by the Ninth Circuit, and the Supreme Court deniеd certiorari.
See U. S. v. Stoll,
Since the incident of November 27, 1974, Stoll’s plight has received considerable attention from the news media. Many articles have been published in Arizona newspapers, and there have been radio and television accounts of Stoll’s side of the story. Stoll believed that the agents had perjurеd themselves at the grand jury hearings, then changed their testimony at his criminal trial. Stoll also believed that the agents were attempting to cover up the true nature of the events of November 27th. He expressed these beliefs in the publications that form the basis of this defamation suit.
After Stoll’s conviction, he accusеd all the agents involved of perjury. He claimed that he was “set-up” by the agents, who were supposedly collaborating with his political foes in Mohave County. Stoll further claimed that the agents themselves were dealing in marijuana, and that the federal government was attempting to suppress the truth. Several lettеrs were written by Stoll demanding that these agents be discharged. One letter in particular was addressed to the United States Attorney’s Office in Tucson, specifically referring to Agent Hansen and alleging many misdeeds by the agents involved. To put an end to these remarks, Hansen and six of the other agents initiated this defamation aсtion.
I. ACTUAL MALICE
In reviewing this case, we note at the outset that Stoll’s remarks were directed at public officials.
See Rosales v. City of Eloy,
The
New York Times
test for actual malice has been well stated in § 580A of the Restatement Second of Torts (1976). It has been adopted in Arizona,
Sewell v. Brookbank,
The question of whether Stoll’s statements were false was not seriously argued in the court below. Most of the testimony related only to Stoll’s reasons for believing them to be true, rather than their factual accuracy. All plaintiffs denied the charges, and Stoll put оn little affirmative evidence to the contrary. From our review of the record, we cannot conclude that the jury erred in finding that the statements were indeed false. We must also conclude that the statements were defamatory per se, in that they alleged perjury and other crimes involving moral turpitude. See Restatement Second of Torts, §§ 559, 571.
The term “reckless disregard” has been defined to mean a high degree of awareness of probably falsity.
Sewell v. Brookbank, supra,
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation.
In other words, a person cannot close his eyes to the obvious truth, yet still claim lack of knowledge. Such was the conduct of Stoll. His claims of perjury were adequately laid to rest during the appeals of his criminal conviction. His claims of conspiracy and smuggling were investigated and found to be without merit. Nevertheless, he persisted. Although one can appreciate the fact that Stoll was merely trying to vindicate himself, he was attempting to do so by repeatedly making slanderous allegаtions against the appellee agents without factual support. We hold that there was sufficient evidence to support a determination by the jury that he was acting in reckless disregard of the truth when behaving in this manner. Because we so hold, we find it unnecessary to reach the issue of whether Stoll’s statements werе protected by a qualified privilege.
II. PUBLICATION
To be actionable as a matter of law, defamatory statements must be published in such a manner that they reasonably relate to specific individuals.
Rosenblatt v. Baer,
When a group of persons are defamed, the statements must reasonably relate to a certain individual member or members. Restatement Second of Torts, § 564 A;
Farrell v. Triangle Publications,
Many of the defamatory statements included herein are directed to the
Connecting these two plaintiffs to the defamatory remarks requires knowledge of who was involved in the incident of November 27th. Clearly, this is not information possessed by the averаge reader of Stoll’s statements. Within the law enforcement organizations involved, however, such information was available. It is not necessary to prove that every reader could make the connection, as publication to any individual will suffice. See Prosser, supra at § 113. But the connection must be reasonable under the сircumstances. Restatement Second of Torts § 564; Prosser, supra, § 111.
The question of identification is for the jury to decide. Restatement Second of Torts § 617. The jury was properly instructed on the rules relating to group defamation, see Restatement Second of Torts § 564 A, and found Stoll liable to each plaintiff. Upon this state of the rеcord, we hold that the publications were sufficiently specific to identify the seven plaintiffs to this action, and that the evidence supports the jury’s determination.
III. DAMAGES
The jury assessed damages in favor of each plaintiff. Agents Jordan, Hansen, Paulsen and Valentine were each awarded $1,000 actual and $10,000 punitive dаmages. Agents Madrid, Ayala, and Chittendon were each awarded $500 actual and $1,000 punitive damages. Appellants challenge each of these various awards.
It has long been the law in Arizona that damages are to be assessed by the jury. As stated in
Arizona Publishing Co. v. Harris,
The question of damages for a tort, especially in a casе of libel or slander, is peculiarly within the province of the jury, and unless the damages are so unconscionable as to impress the court with its injustice, and thereby induce the court to believe that the jury were actuated by passion, prejudice or partiality, it rarely interferes with the verdict. It is not for us to say that, hаd we been assessing the damages, we would have given a less amount. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries.
Id.
at 459,
The jury in the instant case was instructed that an awаrd of punitive damages must be based on a finding of common law malice; i. e., “ill-will, hatred, spite, or a desire to injure plaintiff.” In light of Stoll’s remarks and activities it was not unreasonable for the jury to decide that he did in fact have such motives. Furthermore, the evidence reflects that plaintiffs actually were injured by these rеmarks. Thus, we hold that the jury’s award must stand.
IV. COUNTERCLAIMS
The remaining issue on appeal involves the several counterclaims raised by Stoll.
Count I alleges fraud, and is deemed by appellants to constitute a claim for malicious prosecution. If such a claim is indeed intended, the cause of action has not yet accrued. To be actionable, the prosecution complained of must terminate in favor of the complaining party.
Owen v. Shores,
Count II alleges false imprisonment. The claim accrued of necessity when Stoll was arrested, because he has not been imprisoned since. Therefore, the claim is barred by the one year statute of limitatiоns. A.R.S. § 12-541(1) (1956). Further, since he was convicted of the crime charged, he could hardly be falsely imprisoned when held to answer for that charge.
Count III alleges libel and slander, and appellant has now admitted that this cause of action is barred by the statute of limitations.
Count IV alleges intentional infliction of mental distress. This clаim accrued, if at all, upon Stoll’s conviction in federal court. Thus, it is barred by the applicable two-year limitation period. A.R.S. § 12-542(1) (Supp.1980).
Count V alleges conspiracy to maliciously prosecute. Arizona does not recognize the existence of the tort of “conspiracy”.
Tovrea Land and Cattle Co. v. Linsenmeyer,
Count VI alleges invasion of privacy. Appellants assert that this cause of action is within the four-year general limitation period of A.R.S. § 12-550 and is still actionable in the instant case. Appellees assert that it is within the two-year period of A.R.S. § 12-542, and is thus barred. Invasion of privacy has not been characterized in Arizona for limitation purposеs, and we treat this question as a matter of first impression.
The Arizona statutes of limitation were adopted from Texas, and our courts have traditionally given weight to the Texas interpretation.
See Montano v. Scottsdale Baptist Hospital, Inc.,
In Arizona the gravamen of an action for invasion of the right of privacy is the injury to the feelings of the plaintiff, and the mental anguish and distress caused thereby. [Citations omitted].
Fernandez v. United Acceptance Corp.,
In determining what period of limitation aрplies, we look to the nature of the cause of action.
Atlee Credit Corp. v. Quetulio,
Finding no persuasive substance in appellant’s contentions, we hold that the trial court properly dismissed all of Stoll’s counterclaims.
We have carefully reviewed the record of this case, and we can find no basis for disregarding the jury’s verdict. Applying
Notes
. Agents Jordan, Hansen, Paulsen and Valentine were each awarded $1,000 actual and $10,-000 punitive damages. Agents Madrid, Ayala and Chittendon were awarded $500 actual and $1,000 punitive damages.
. These discrepancies, however, are mostly attributable to the hearsay testimony that was allowed before the grand jury but excluded at the trial.
. Also included was Philip Jordan, the agents’ supervisor in Phoenix with whom Stoll spoke on the telephone during Stoll’s arrest in Oat-man.
. Agents Jordan, Hansen, Paulsen, Madrid and Valentine were all specifically named in at least one article. Agents Ayala and Chittendon were never specifically named.