Buzard v. Griffin

358 P.2d 155, 89 Ariz. 42, 1960 Ariz. LEXIS 185

• Court: Arizona Supreme Court
• Decided: December 21, 1960
• Docket: 7055
• Status: Published

Opinions

STRUCKMEYER, Chief Justice.

This case arises out of the primary election of September 9, 1958. Three candidates, William T. (Bill) Brooks, the incumbent, William A. (Bill) Brooks and A. P. (Jack) Buzard, there sought the Democratic nomination for a six-year term on the Arizona Corporation Commission. As a result of the election, A. P. (Jack) Buzard received 56,799 votes, William T. Brooks 48,988 and William A. Brooks 26,-547. Accordingly, Mr. Buzard was declared the Democratic nominee for the office and was issued a certificate of nomination.

On October 20, 1958 a statement of ■election contest was filed by appellees, "individually, and in the right and on behalf of the electors and members of the Democratic Party of the State of Arizona.” Appellant A. P. Buzard moved to dismiss and the Superior Court of Maricopa County granted the motion, entering a judgment- dismissing the election contest. Appellees appealed and this court reversed, holding that the complaint stated a valid ■election contest, Griffin v. Buzard, 1959, 86 Ariz. 166, 342 P.2d 201. Although this is not a criminal action, certain of the allegations in the statement of election contest charge appellant with violations of A.R.S. § 16-1303 and A.R.S. § 16-1307 dealing respectively with coercion and intimidation of an elector and changing the vote of an elector by corrupt means or inducement.

Thereafter the cause proceeded to trial with the result that the Superior Court of Maricopa County annulled and set aside the nomination of A. P. Buzard as Corporation Commissioner based on the following express findings:

“that W. A. Brooks did not intend to be a good faith candidate for the office of Corporation Commissioner, but that his name was placed on the ballot through the efforts of himself and A. P. (Jack) Buzard and associates to confuse Brooks’ (sic) name with that of W. T. Brooks, a good faith candidate, who was running for re-election, and thereby draw mistaken votes to W. A. Brooks.” (Emphasis supplied.) “that the Contestee, A. P. (Jack) Buzard committed an offense against the elective franchise of the voters at the primary election of September 9, 1958, by fraudulent device or contrivance, and in defrauding the electors at said primary election by deceiving (sic) and causing them to vote for a different person for the office of Arizona Corporation Commissioner than they intended or desired to vote for.” (Emphasis supplied.)

Essentially the complaint charges that William A. Brooks was not a candidate in good faith; that the bad faith consisted of placing his name on the ballot for the purpose of misleading the voters and thereby drawing votes from William T. Brooks. It is also alleged that Buzard was implicated in such conduct, directly or through agents, by originating, aiding and abetting or taking part in that conduct. Assuming without deciding that W. A. Brooks was not a good faith candidate, the crucial question then is whether there is sufficient evidence to implicate Jack Buzard in conformity with the allegations of the complaint and the findings of the court below.

The court below relied on these facts as evidencing Buzard’s participation in the procurement of W. A. Brooks’ candidacy:

1. Proof that some of the nomination petitions of W. A. Brooks and Buzard were circulated by the same persons;

2. Proof that a Buzard supporter (who was also a supporter of W. A. Brooks) was a friend of the daughter of W. A. Brooks and visited the home of W. A. Brooks on two occasions during the campaign;

3. Proof that certain people who were subpoened for the purpose of giving depositions at appellees’ request, after the primary election and after the contest was started, met in a hotel room the evening before they were to appear, and that they all declined to testify on the following day;

4. Proof that at the time regularly set for taking the depositions of A. P. Buzard, he refused to answer certain questions by invoking the constitutional privilege against self-incrimination.

No other evidence whatsoever is claimed to establish Buzard’s connection with the entrance of W. A. Brooks in the race for Corporation Commissioner. Is this evidence sufficient to implicate A. P. Buzard as originating, aiding or abetting in the candidacy of W. A. Brooks? We think not.

Points 1 and 2. The evidence established that a person by the name of Harold Bras-field, an employee of the Arizona Corporation Commission and a friend of Pearl Brooks DiFebbo, the daughter of W. A, Brooks, visited the W. A. Brooks home on at least two occasions during the campaign and circulated two nomination petitions on his behalf, obtaining 50 signatures thereon; that he delivered nomination petitions of W. A. Brooks to a Patricia Brown and paid for her circulating 28 of them; that he had Georgia C. Watts and her husband, Bennie Watts, circulate and fill in 12 petitions for W. A. Brooks; that he also circulated five petitions on behalf of the candidacy of A. P. Buzard, and obtained 100 names on them; that he worked in the Tucson office of the Corporation Commission and knew Millard C. Hardin, who acted as financial agent and filed a primary expense statement on behalf of W. A. Brooks. Hardin circulated one petition with 25 names on behalf of W. A. Brooks and five petitions containing 118 names on behalf of A. P. Buzard.

It would appear therefore that both Brasfield and Hardin took a leading part in the candidacy of W. A. Brooks and were also interested in and took part in the candidacy of A. P. Buzard. There is, however, no testimony or evidence that Bras-field or Hardin engaged in their activities on behalf of W. A. Brooks at the instigation or suggestion of A. P. Buzard.

There is evidence that E. T. Williams, a Corporation Commissioner, asked one Pete Waggner, an employee of the Corporation Commission at Tucson, to campaign for A. P. Buzard and that Pete Waggner knew Harold Brasfield and was in contact with him since both worked in the same office in Tucson. This latter evidence falls far short of establishing a connection between A. P. Buzard and the efforts of Brasfield and Hardin to promote the candidacy of W. A. Brooks. If there is an inference from Waggner’s knowing Brasfield, it can do no more than support the speculation that E. T. Williams was able to exert sufficient influence to induce Brasfield and Hardin to assist in the candidacy of Jack Buzard.

Point 3. - The court below in part based its judgment on the refusal of certain witnesses to answer any questions concerning ing the campaign of W. A. Brooks. Its conclusion was predicated on the fact that after the statement of election contest was filed on October 20, 1958, subpoenas were issued for the purpose of taking depositions of certain witnesses on October 23, 1958. On the evening of October 22, two lawyers, one being the attorney for A. P. Buzard, met in a hotel room in Tucson with, among others, A. P. Buzard, Harold Brasfield, W. A. Brooks, Mrs. W. A. Brooks, Pearl DiFebbo, Millard C. Hardin and Pete Waggner. The following day at the time duly set for the taking of their depositions, these individuals (except A. P. Buzard) refused to answer any questions. The court below inferred from the refusal of the people present at the meeting in the hotel room that there was a plan by A. P. Buzard to prevent the witnesses from giving any testimony. From this inference it derived a second inference that had their testimony been given, it would have been adverse to A. P. Buzard.

We think such a conclusion, basing an inference on an inference, as it does, spins out the chain of reasoning into the region of barest conjecture. Wholly aside from the rule of law that no inference prejudicial to either party can legitimately be drawn from a witness’ assertion of his privilege of refusing to testify, Commonwealth v. Ries, 337 Mass. 565, 150 N.E.2d 527, 541; Billeci v. United States, 87 U.S. App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881, it has long been the rule in Arizona that in order to draw an inference from an inference, the prior inference must be established to the exclusion of any other reasonable theory rather than by a probability. New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 196, 79 P.2d 948.

In the instant case the court below drew the inference that there was a plan by A. P. Buzard to prevent the witnesses from giving any testimony. This inference was derived, as stated, from a meeting of the witnesses in a hotel room and their refusal to testify the following day. It will be noticed that there must be inferred, first a plan, second that it was A. P. Buzard’s plan and third that the plan was to prevent the witnesses from giving testimony. While it is of course conceivably possible to draw such an inference, it is also probable to conclude that the meeting in the hotel with the lawyers was to ascertain the legal rights of those persons present. Hence there is no inference to the exclusion of any other reasonable probability that there was here a plan to prevent the witnesses from testifying.

Even if it were possible to conclude, to the exclusion of any other reasonable theory, that there was a concerted plan not to testify, is it a necessary conclusion that it was A. P. Buzard’s plan to prevent these witnesses from giving any testimony. Each may have decided independent of the others on the advice of the counsel present what his course of conduct would be. In this respect the record shows that W. A. Brooks, Mrs. W. A. Brooks, Pearl DiFebbo and Millard C. Hardin all refused to testify the following day on specific instruction from their attorney, Ira Schneier, there present. It further shows that Harold Brasfield stated:

“Last night I heard Mr. Schneier advise his clients to * * *. I heard him read the complaint to them and I heard him advise his clients, he felt the court lacked jurisdiction in this matter, and I personally believe my constitutional rights to refuse to answer any further questions, on the ground it would be invading into my political beliefs and activities, and until I can get advice from counsel, I refuse to answer any further questions.”

We think it is clear that the record does not support the inference to the exclusion of any other reasonable theory that there was a plan by A. P. Buzard to prevent 'these witnesses from giving any testimony merely because of the presence of A. P. Buzard and his lawyer at the conference. Accordingly the inference that their testimony would be adverse to A. P. Buzard is a mere possibility and no legitimate conclusion can be based thereon.

Point 4. The court below rested its judgment in part on an inference drawn from the refusal of A. P. Buzard to answer certain questions at the time duly set for the taking of his deposition on December 12, 1959. At that time he invoked the constitutional privilege against self-incrimination, while at the same time specifically reserving the right to testify at the actual trial of the cause. The trial court stated:

“ * * * the action of A. P. Buzard in preventing these witnesses to testify, and Mr. Buzard’s refusal to answer questions * * * at the taking of his deposition * * * raise the inference that his and their testimony, if given, would have been unfavorable to said A. P. Buzard.”

It is first argued by appellant that it is improper in a civil case to draw an inference from the' invocation of the privilege against self-incrimination. We think, however, that the majority of courts while recognizing the distinction between criminal and civil proceedings permit an inference to be drawn in civil litigation as to the truth of the misconduct with which the litigant is charged. Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350; Amana Society v. Selzer, 250 Iowa 380, 94 N.W.2d 337; Ikeda v. Curtis, 43 Wash.2d 449, 261 P.2d 684.

“ * * * while his claim of privilege may not be used against him in a subsequent criminal prosecution, an inference that his testimony would have been unfavorable to him is available to the opponent in the civil cause.”

8 Wigmore Evidence, 3d ed. Pocket Supplement, Section 2272.

The further question remains to be answered as to whether under the peculiar circumstances of this case an inference can be drawn against A. P. Buzard that he procured and aided or assisted in the candidacy of W. A. Brooks. At the trial of the cause, appellant took the witness stand and thereafter answered all questions propounded to him. When counsel for appellant concluded, appellees dismissed the witness without cross-examination. The issue is whether an inference which could have been drawn from the claiming of the privilege at the time of taking the deposition continues after the witness, waiving his former claim of privilege, subsequently testifies in the same proceeding.

An inference is a fact which may be presumed from the proof of the existence or non-existence of other facts. It is a conclusion from a proven fact or facts. Here the fact to support the inference was the failure of A. P. Buzard to testify at his deposition. When he did later testify at the trial, the fact upon which the inference rested no longer existed and the inference deducible from it vanished and was extinguished. The controlling fact here to be emphasized is that appellant did testify at the trial of the cause. It is this fact which destroys the inference arising from prior failure to testify.

Moreover, the testimony of A. P. Buzard was an unequivocal denial of the allegations of the complaint. He testified:

“Q. Mr. Buzard, did you or any person that you authorized or knew of, have anything to do with the entry of Mr. W. A. Brooks of Tucson, Arizona, into the race, Corporation Commissioner, for the long term during the last election? A. * * * No sir.

“Q. After Mr. W. A. (Bill) Brooks announced his candidacy for the Corporation Commissioner, did you personally aid or assist him in his candidacy in any way? A. No sir.

“Q. After Mr. W. A. (Bill) Brooks of Tucson entered the race, did you authorize and instruct any person whomsoever to aid or assist his candidacy in any way ? A. No sir.”

In this jurisdiction the triers of fact may not arbitrarily reject evidence where there is nothing intrinsic in the evidence itself or extrinsic in circumstances which cast suspicion upon the testimony. Ratley v. Industrial Commission, 74 Ariz. 347, 248 P.2d 997; In re Gary’s Estate, 69 Ariz. 228, 211 P.2d 815. The trial judge was not at liberty to reject the uncontradicted positive testimony of A. P. Buzard.

Seemingly only one other state has passed on the issue here directly presented. Its holding is in conformity with our conclusion here.

“This court is committed to the doctrine that a witness who appears and testifies generally at a trial on the merits may not be discredited by showing that at a former hearing or in a priorly given deposition such witness refused to testify on the ground his testimony might tend to incriminate him. Masterson v. St. Louis Transit Co., 204 Mo. 507, 523-525, 98 S.W. 504, 103 S.W. 48, 53-54; Garrett v. St. Louis Transit Co., 219 Mo. 65, 87-95, 118 S.W. 68, 74-78; State v. Weber, 272 Mo. 475, 199 S.W. 147, 148; Hill v. Missouri Packing Co., Mo.App., 24 S.W .2d 196, 198; State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 134.” Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 485.

Appellees urge that because of the claim of privilege against self-incrimination, they have been deprived of the benefits of pretrial discovery. We think the public policy of this state encourages litigants and others to fully testify as to all material matters in order that the truth may prevail. Were this court to adopt a rule permitting the inference to prevail over the subsequent unimpeached sworn declarations, it would discourage such subsequent testimony. It was the appellees’ right to request the court below for a continuance in order to refute A. P. Buzard’s sworn testimony, if such were possible.

The instant case is one where appellees have alleged fraud. Fraud must be established by clear and convincing evidence. It may not be predicated on speculation and conjecture. Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786; Stewart v. Schnepf, 62 Ariz. 440, 158 P.2d 529. The judgment of the court below palpably rests upon speculation and conjecture. It finds no reasonable support in the evidence. It must be set aside.

One further point should be considered. After A. P. Buzard refused to testify at his deposition, appellees moved the court below for an order compelling A. P. Buzard to answer the questions so propounded. This motion was denied. Thereafter, appellees moved to strike the answer of A. P. Buzard upon the grounds that appellant.had refused to answer questions on oral deposition. This motion was also denied. It is now urged in support of the judgment that appellees’ motion to strike should have been granted and judgment should then have been rendered against A. P. Buzard. Appellees are plainly in error. Rule 37(a), Rules of Civil Procedure, 16 A.R.S., specifically provides the procedure when a party or a witness refuses to answer any question propounded upon oral examination, the opposing party may apply to the court for an order compelling an answer. It then becomes the duty of the court to determine whether the refusal was without substantial justification. By rule 37(b), if a party refuses to answer a question after being directed to do so by the court, the court may enter an order striking out pleadings.

Such is not the case here. On appellees’ motion to compel A. P. Buzard to answer, the court recognized his constitutional right to refuse to testify and denied the motion. There was consequently no refusal to comply with the court’s order to answer, as is required'by rule 37(b). Since appellees’ motion to strike appellant’s pleadings was not authorized under the rule, the court below did not err in refusing to render judgment in appellees’ favor.

Since there is no reasonable testimony or evidence to support the judgment, it is ordered reversed with instructions to enter judgment declaring A. P. (Jack) Buzard as nominated Corporation Commissioner for the long term at the primary election of 1958 and elected to the office in the general election in 1958. .

BERNSTEIN, UDALL, and LESHER, JJ., concurring.