Lind v. Lynch
665 P.2d 1276
Utah
1983
Check Treatment

*1 proof corpus intensity. independent An au- ment of gree of discoloration and prosecution that the delicti demands which revealed that topsy performed, independent evidence have introduced very large of death was a primary cause (b). (a) and It is not head, tending to show top of the bruise over the left independent proof necessary that hematoma and se- caused bilateral subdural with the tend to connect swelling. performing vere brain The doctor crime.4 accident as the cause autopsy ruled out omitted.] [Citations injuries of death of the number because sentence are affirmed. The conviction and the death to so- present. He attributed syndrome.” child called “battered written statement was

The defendant’s rights, waiver of

given voluntarily, with police police officer at station. She officer, freely telling with the

also talked husband,

him of troubles with her who was father, biological not the child’s the finan- Jolley, Kent E. LIND and Bruce family, cial difficulties with her her lack of Appellants, and area, during past friends in the and that repeatedly three weeks she had hit child, really expected often “harder than I LYNCH, Eugene B. back, bruises on the child’s Noticing to.” Respondent. discipline her husband had told her not to No. 18319. trial, the child. At the defendant said her had also beat the child. of Utah. Supreme husband upon which defendant The basis 25, 1983. May her contention that her predicates error is employed statement cannot be to establish that since corpus delicti. She reasons inadmissible, corpus de-

her statement impossible prove in this case.

licti that, ready answer is statement, independént evi go jury sufficient manslaughter. This is re pertaining neglect, in the facts

flected

abuse, environment, repeated beating, and herself, to testimony of the defendant objected.

which no one undisputed, admissible

unobjected-to justifies evidence the verdict guilt beyond a reasonable doubt under following principles: it is neces- guilt,

To establish (a)

sary prosecution for the to show crime injury specified or harm

occurred, (b) harm was injury or activity, criminal

caused someone’s (c) guilty par- was the conviction, require-

ty. To sustain a ed., Cleary, 1972), p. McCormick, (E. at 347. 2d 4. Handbook of Evidence *2 Peterson, Jr., Lawrence R. Lake Salt City, for and appellants. Aadnesen, City,

Grant C. Salt Lake for respondent. defendant and HOWE, Justice: Plaintiffs Lind and Jolley, president and attorney, respectively, Corpora- A.M.R. tion, appeal seeking the reversal of a sum- mary judgment in which the trial court dismissed their against libel action defend- Lynch, corpo- stockholder in the same ration. brought

Plaintiffs their action after de- fendant proxy mailed a solicitation to the of the corporation stockholders in which he allegations fraud, cited of what he termed deceit conspiracy in an com- plaint plaintiffs in the United proxy States District Court of Utah. In the solicitation, the defendant commented the allegations the U.S. complaint. He also endeavored to allegations answer the refutation of those margin had made in the copy Plaintiff had cop- copies ied and mailed with marginal these notations to the A.M.R. prior mailing stockholders to defendant proxy solicitation. summary judg-

The trial court entered proxy ment based defendant’s solicita- plaintiffs’ tion which was attached to com- exhibit, plaint as an and also the full ancillary complaint plain- text of the marginal tiffs’ notations. accompanying at a latter was hearing on a motion made 12(b)(6), dismiss under Rule Utah Rules of Civil Procedure. While that “... alleged knew that the in said solicitation allegations defamatory were false and no evi- published[,]” caused the same to be at the malice was offered prior to hearing on the motion to dismiss judgment. summary The trial court held: Summary Motion for it Judgment Dismissal is be- a matter ing holding that as law, refer Rule 56. Even defendant had the under the United characterized erroneously where a motion Attorney, exceed that dismiss, States and did not if matters outside privilege. and not exclud- ed, one the motion is treated as however, it argue, v. Associated summary judgment. Strand improper for the trial court to *3 Utah, University 561 P.2d Students summary judgment them where (1977). V Ranch v. 191 also Bekins Bar See They was made. only dismiss Ass’n., Utah, Utah Farm Production Credit Central, Inc., cite Hill v. 25 Utah 2d Grand (1978). Housely, Hughes 587 P.2d 151 v. Cf. 121, (1970) support. 150 In 477 P.2d Utah, Harvey P.2d v. (1979); 599 1250 case, denied de unique that the trial court Sanders, Utah, (1975). 534 P.2d 905 that it fendant’s motion dismiss but said the would a if As to the merits of this plaintiff produce sup did not evidence to it has held that com judgment, long been allegations of within 30 port actual malice a between who share persons munications days from the date hearing. This qualifiedly common business interest are reversed, summary judg concerned that and not in the absence privileged libelous ment “never be used what the to determine Cudahy Corp., v. Trading malice. Gem Co. are, facts but to ascertain whether 278, (1979) 1222 Wash.App. 22 588 P.2d any there are fact issues of al qualified privilege protected where a dispute.” 123, Id. at at 151. The 477 P.2d in letters a cor legedly libelous statements inapposite Hill case is the before us. em about an porate employer written case, Unlike the trial court in the Hill the a with whom the shared ployee employer require court case at bar did not trial interest; v. Sylvester common business proof they to state would what 382, (1938) Armstrong, Wyo. 53 84 P.2d 729 produce on an issue which had not been by where a letter a stockholder written Rather, the properly raised. followed concerning another conduct stockholder’s 12(b) granted judg Rule a summary hotel was found managing corporation the pleading, ment where matters outside the Co., qualifiedly privileged; to be World Oil namely ancillary mar complaint the Hicks, Texas, 46 Civ.App., Inc. v. S.W.2d notations, ginal to it. presented were (1932) where a letter to stock 394 director’s 12(b) Rule of the Utah Rules of Civil a holders in which creditor provides: Procedure thief, violator was parasite, called a and law If, asserting on a motion the defense and, held Stroud (6) numbered to dismiss for failure of the Harris, (1925) 25 a letter from 5 F.2d where re- pleading upon to state a claim stockholder) (and to other one bondholder lief can be matters outside the manager bondholders pleading presented to and not exclud- privileged held corporation qualifiedly court, by ed shall be treat- 50 in the absence of malice. See ed as one for 168, Slander, 270 Am.Jur.2d Libel & § § 56, and all disposed of as in Rule Slander, 109 (1970); 53 C.J.S. & § Libel given shall be parties opportu- reasonable (1948). nity present perti- made all material by nent to such a motion Rule 56. complaint in There is no claim in the by charges the instant case that the rule, According though to this de- ancillary complaint U.S. initially fendant’s motion was for dismissal by given false information were based because of failure to state a the trial Consequently, the defendant. granted claim which relief could be that ruling court’s “defendant 12(b), under Rule once the to refer pleadings which was outside court, Attorney” not is sustainable to and excluded United States v. International the motion was treated as one for matter of law. Barlow Co., 881, DURHAM, JJ., 95 Idaho Harvester OAKS and concur. (1974). Defendant, and the other STEWART, J., concurs in the result. stockholders shared common business in- terest; and, his letter HALL, (concurring Chief Justice: only to them. His letter was protected by a dissenting). qualified privilege unless he I join portion opinion published it. Combes v. Montgomery Ward defendant had recognizes (1951); & 119 Utah P.2d 272 Brother, to make reference to and comment Spielberg v. Kuhn & Attor- 116 P. 1027 the United States However, ney against plaintiffs. I do not Trading Cudahy In Gem Co. v. join opinion that va- remainder of Corp., supra, the court held that because summary judgment. cates the neither nor affidavit any raised *4 allegation I deem bare of de- malice, issue of properly granted being of mind as purported fendant’s state on the libel legal consequence particu- of no under the claim. The court stated: lar facts The trial court had case. If [appellant] Mr. Van Woerden had asserted, before it the full text of the libel placed in issue question [respon- together subject with the full text of the faith, Cudahy’s good Cudahy, then dent] thereof, the face and with- On moving party, as the would have been evidence, necessity out the of further required to support its motion some of the defend- publication claimed libelous evidentiary beyond pleadings. material its nothing ant reflects that it was more than a Id. 22 Wash.App. at 588 P.2d at 1225. comment contained in us, In the case before allegation complaint, public an official on file as a plaintiffs’ complaint required of malice record, already which had been supported have his motion Corporation, all of the stockholders of AMR some evidentiary material there was already upon by plaintiffs. commented no malice. The record shows that defend- clearly privi- did not exceed the regard. made no effort in that There- thereon, lege regardless he had to comment fore, the plaintiffs’ allegation of malice However, his motivation was of his motive. stood unchallenged and the documents, i.e., plain also on the face of the motion for on that issue he had to comment to exercise was error. complaint, particular- content of Had defendant some evidentia- ly light of the fact ry refuting any part, malice on his fit so. already seen to do respond failed to entire- I would affirm the in its it, the trial court could have ruled that ty- there was genuine no issue of fact on the publication of whether malice. Williams v. Stan- Publishing dard-Examiner Because that was not

done, we affirm the summary judgment

insofar as it holds that defendant’s commu- but,

nication was we part

must reverse and remand that concerning issue of malice for con-

sideration the trial court. remand- part;

Affirmed reversed and part.

ed in No costs awarded.