2 P.2d 383 | Cal. | 1931
THE COURT.
Plaintiff brought this action to recover damages from the defendant for an alleged libel. A demurrer to the first amended complaint was sustained without leave to amend. Judgment for costs was thereupon entered for the defendant, from which judgment this appeal was taken.
It is alleged in the complaint that the plaintiff was, and is, what is generally known and termed a "publicity agent"; that by her perseverance, endeavors and ability she had created and built up a lucrative business as such publicity agent; that on or about October 31, 1927, the defendant, an attorney at law, and then president of the Los Angeles Bar Association, and a man of great wealth and influence, wrote, published and caused to be published by others, a certain letter or article of and concerning the plaintiff, which said letter or article reads as follows: "Referring to certain letter appearing in a morning paper of this date. Without taking the time to comment upon the entire letter of Mr. McNitt, I desire to correct one or two misstatements therein *440 contained. These misstatements were perhaps due to the stress under which Mr. McNitt is apparently laboring in his campaign for election to the Board of Governors of The State Bar. I did not as stated by Mr. McNitt, nor did my office send `to the metropolitan dailies publicity containing statements which were erroneous'. No publicity whatever was sent out from my office or by me concerning the election, which fact Mr. McNitt could have ascertained by the slightest inquiry.
"I did not ask Mr. McNitt to withdraw although I did consider it my duty as a long time acquaintance and as a member of the State Bar Commission to ask him whether he had considered the fact that as a member of the Board, if elected, it would be his duty to establish standards for admission which might conflict with the policy of the law school with which he is connected, this being a duty which cannot be delegated to a committee. In the course of the conversation, he stated he did not like to be in the position of running against leaders of the Bar, such as Mr. Hunsaker and Mr. James and he thought he would withdraw. Later on he informed me that he had been importuned by his friends to stay in the race.
"As to the principal subject of controversy to which the letters of Judge Hollzer, Miss Bates, Mr. McNitt, and Mr. Hunter, are directed, I think this could have been avoided, had there not been confusion with respect to the fact and date of termination of employment of Miss Bates by the Los Angeles Bar Association. This confusion is apparently cleared up by the publication of those letters. It would probably serve no useful purpose to recite the circumstances leading to the request for Miss Bates' resignation which in pursuance to such request, was received and accepted by the Board of Trustees on or about July 7, 1927. The confusion, however, is easily understood in view of the fact that Miss Bates without permission or consent continued to use Bar Association stationery and failed to notify the metropolitan papers of her change of status and in using her articles it was assumed that she still represented the bar association. In fact, not only Judge Hollzer, but a number of other judges and lawyers who signed certain petitions and letters at the request of Miss Bates have stated that they would not have done so had they known she was not employed by *441 the Bar Association and had they known that certain other candidates were in the field.
"October 13, 1927. KEMPER CAMPBELL";
that by said letter or article the defendant intended it to be understood, and it was so understood by the readers thereof, to mean that plaintiff had been discharged by the board of trustees of the Los Angeles Bar Association for the reason that she was not a fit person to occupy such position; that she had appropriated to her own use, and had used, property of said bar association by reason of which conduct and the employment of false pretenses she had induced divers persons to sign certain petitions and letters which they would not otherwise have signed; that to the defendant's knowledge all of said statements were false, defamatory and untrue; that said letter or article is false, libelous, defamatory, untrue and unprivileged, and was written and published maliciously and with evil intent to injure and defame plaintiff and to destroy her business and to prevent plaintiff from earning a livelihood for herself and minor children; that said false and defamatory letter or article has greatly injured the reputation of plaintiff in the city of Los Angeles and the county of Los Angeles, and has exposed her to public hatred, contempt, ridicule and obloquy, and has injured her in her profession, all to her damage in the sum of $50,000. The complaint also prays for an award of exemplary or punitive damages in a like amount.
[1] Section
[2] Publications falling within the statutory definition above set out are libelous per se, thus obviating the necessity for an averment of special damage. (Layne v. Kirby,
[3] Viewing the alleged libelous communication in the light of these well-established principles of law, we are of opinion that there is merit in respondent's contention that the innuendo contained in the complaint attempts, in some particulars at least, to enlarge and extend beyond its fair and reasonable import the meaning of certain of the statements published of and concerning the appellant. To illustrate: The statement in the letter that "It would probably serve no useful purpose to recite the circumstances leading to the request for Miss Bates' resignation which in pursuance to such request, was received and accepted by the Board of Trustees on or about July 7, 1927," may not be construed, as in the complaint here, to mean that "plaintiff was discharged by the Board of Trustees of the Los Angeles Bar Association for the reason that she was not a fit person to occupy such position". The statement quoted from the letter makes no reference whatever, either expressly or impliedly, to appellant's fitness or unfitness to occupy such position, and is not therefore reasonably open to the construction attempted to be placed on it. (Maynard v.Fireman's Fund Ins. Co.,
[4] Considering the publication herein as well from the expressions used as from the whole scope and apparent object of the writer, we are of the view that certain of respondent's written statements of and concerning the appellant are actionable entirely regardless of the innuendoes by which it is sought to explain or enlarge their sense. This being so, the allegations by way of innuendo may be disregarded as surplusage. The publication here complained of charges, among other things, that "Miss Bates without permission or consent continued to use Bar Association stationery and failed to notify the metropolitan papers of her change of status and in using her articles it was assumed that she still represented the Bar Association. In fact, not *444
only Judge Hollzer, but a number of other judges and lawyers who signed certain petitions and letters at the request of Miss Bates have stated that they would not have done so had they known she was not employed by the Bar Association and had they known that certain other candidates were in the field." It is this portion of respondent's letter that contains the sting of the libel. In this connection, it must be borne in mind that the complaint alleges and for present purposes it must be taken to be true, that appellant for some time prior to the publication of the alleged libel had been engaged as a publicity agent, and by means of her ability as such had created and built up a lucrative business. There can be but little doubt that a publicity agent, like any other agent, stands in a fiduciary relation to his principal, and because of the trust and confidence reposed in him by his principal he must exercise the utmost good faith, must acquire no interest adverse to that of his principal, and must not unite his personal and representative capacities. As an incident to his employment, a publicity agent is necessarily entrusted with certain intimate information, files, letter-heads, and other property of his principal essential and expedient to the proper and satisfactory discharge of his duties. To state of such a fiduciary that, without having first obtained the "permission or consent" of his principal, he had "continued to use" these instrumentalities subsequent to the termination of his employment, is to injure him in his occupation within the meaning of section
While, as contended by respondent, it may not be libelous to state that appellant had failed to notify the newspapers of her change of status (it not being incumbent upon her to do so), and likewise, while it may not be libelous to state that the newspapers, being ignorant of appellant's change of status, had assumed that her articles were still *445 being written for and on behalf of the Los Angeles Bar Association (appellant not being answerable for the construction placed on such articles by the newspapers), the fact still remains that respondent wrote and published of the appellant that subsequent to the severance of her confidential connection with the Los Angeles Bar Association, and without its permission or consent, she had continued to use bar association stationery, with the result that certain persons, thinking appellant still in the employ of the bar association, were so deceived or misled as to have performed certain acts and done certain things which they would not have performed or done had they been accurately advised as to appellant's status. That respondent's letter charges, both expressly and by necessary implication, that appellant had been guilty of a flagrant violation of the confidence and trust reposed in her by the bar association when it employed her, and that such charge of unethical conduct would have a "tendency to injure" appellant in her occupation, goes without saying.
In Swan v. Thompson,
Moreover, and aside from any "tendency" of the charge to injure appellant in her occupation, respondent's letter charges appellant with having been guilty of conduct which is calculated to and undoubtedly did expose her to obloquy, as one untrue to a trust reposed in her by a former employer, *446
and, if the charge is false, it is libelous under section
The complaint is therefore immune from general demurrer on either of the foregoing theories. As the truth or privileged character of the charges directed at appellant are purely matters of defense, we need not consider them upon this appeal from a judgment entered upon the sustaining of a demurrer to the first amended complaint. We cannot agree that the complaint, on its face, shows the publication to have been a privileged one. While the parties in their briefs concern themselves solely with the general demurrer, we have also considered the several grounds of special demurrer, and likewise find them not to be well taken.
The judgment is reversed, with direction to the court below to overrule the demurrer and permit the defendant to answer, should he be so advised.
