9 P.2d 505 | Cal. | 1932
THE COURT.
After further consideration of this case, we are satisfied that our former opinion written by Mr. Chief Justice Waste correctly states the law applicable to the issues involved herein, and we hereby adopt the same as the final opinion of this court. It is as follows:
"In this action for damages, the first count of the complaint is based on an alleged slander asserted to have been uttered by the defendant of and concerning the plaintiff, while the second count sounds in libel. The jury brought in the following verdict: `We, the jury in the above-entitled action, find for the plaintiff and assess her damages in the sum of ____ ($ ____) Dollars as actual damages and the sum of Five Thousand ($5,000.00) Dollars as punitive damages, making a total of Five Thousand ($5,000.00) Dollars, this 20th day of September, 1928.' From the judgment entered the defendant prosecuted this appeal urging, among other things, that the verdict is contrary to law and void. This point was presented to the court below by means of various motions, each of which was denied.
"Citing section
"Actual damages being shown, it becomes essential to determine whether the money extent thereof must be found in order to sustain a finding of punitive damages. Upon this proposition the decisions are in hopeless conflict. (8 R.C.L. 593, sec. 137; 33 A.L.R. 384-417; 2 Sutherland on Damages, 1321-1327, sec. 406.) The following cases are cited as illustrative of this lack of uniformity. In Gilham v. Devereaux,
"The contrary rule finds expression in McConathy v. Deck,
"Research has failed to disclose any California case in which this point was directly involved. There are expressions in some of our decisions tending to support the rule represented by the Montana case above cited, while others contain declarations apparently favorable to the Colorado rule. To illustrate: It is stated in Lewis v. Hayes,
[3] "Upon the subject of damages, the court below properly instructed the jury in this case as follows: `You are instructed that it is not necessary to a recovery by the plaintiff that she should have proved specific damages if she has otherwise suffered actionable wrong at the hands of the defendant; nor is it necessary that plaintiff should have shown any actual intent or desire on the part of the defendant to injure plaintiff by the publication in question. In other words, where the false words complained of are slanderous and actionable per se, and there is no proof of express malice on defendant's part, the jury may render a verdict in favor of the plaintiff, even though she has not proved any special damage unless it be shown that the publication was privileged as elsewhere explained in these instructions, the jury may infer the existence of malice from proof of the publication of false and unprivileged actionable words. . . . You are instructed that in an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, express or implied, *284 the plaintiff in addition to the actual damages may in the discretion of the jury recover damages for the sake of example and by way of punishing the defendant. The award of exemplary damages depends directly and solely upon the presence of malice in fact in the mind of the defendant. If it was present they may be given. If it was absent, they cannot be allowed . . .'
"We must assume that the jury gave heed to these instructions. From the fact that it awarded punitive damages to the plaintiff, the conclusion necessarily follows that it must have found that with `malice in fact' the appellant gave utterance to the slander and published the libel complained of. In other words, the jury by its verdict has impliedly found that the appellant maliciously uttered and published certain false and unprivileged statements of and concerning the respondent, which statements, as we have already indicated, were respectively slanderous and libelous perse. [4] The law presumes that general damages follow from the utterance or publication of matter slanderous or libelous perse. Hence where, as here, the publication is slanderous or libelous per se, and is false and unprivileged, a cause of action for actual or compensatory damages is conclusively established. (Lewis v. Hayes,
[5] "We are disposed to liberally construe the verdict in this case as a general verdict covering all of respondent's damages, both actual and punitive, rather than strictly as an erroneous verdict. The judgment should not be reversed because of the form of the verdict. (Const., art. VI, sec. 4 1/2.)
"This cause was taken over after decision by the District Court of Appeal, Second Appellate District, Division One, in order that we might fully consider the foregoing point of law. We adopt as and for the remainder of the decision of this court the following portion of the opinion prepared by Mr. Justice Houser of the District Court of Appeal:
[6] "`On the trial of the action, after plaintiff had rested her case in chief, defendant presented a motion to the trial court to the effect that an order of nonsuit be entered as against the plaintiff. The ground of the motion was that as to each count contained in the complaint the communication or publication respectively alleged to have been uttered or published by defendant was privileged within the provisions of section
"`As to the first count in the complaint, since the answer thereto contained no defense that the communication of which complaint was made was privileged, it is plain that no error occurred in the order to which attention has been directed. Besides which condition the circumstances shown by the evidence were such that no privilege could attach to the situation in question. Relating to the second count, and as to which the defense of privilege was presented in the answer, on examination of the record herein it is equally clear that the contention of appellant cannot prevail. Assuming that the alleged libel was of such a character that, within the terms of the statute, its publication was privileged, nevertheless, because of the facts and circumstances surrounding its publication, the evidence was sufficient to justify the submission to the jury of the question of whether the privilege accorded to defendant was deemed to have been lost by reason of the fact that the libel was published by defendant maliciously and without reasonable or probable cause for believing that such publication constituted a true statement of facts.
[7] "`Regarding the further contention by appellant that the verdict was for an excessive amount, and consequently must have been rendered under the influence of passion and prejudice, it need only be said that, considering the evidence relating to each of the two counts in the action, together with that part of the evidence which disclosed the social and financial standing of each of the parties to the litigation, it cannot be said that "the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice." (Wilson v. Fitch,
"We agree with the District Court of Appeal that the assessment of damages in this case is just and reasonable. (See Meyers v.Berg,
[8] "Our examination of the record satisfies us that the evidence is amply sufficient to warrant a recovery by the plaintiff. The denial of appellant's motion for a directed verdict was proper. We have found nothing requiring a reversal." *287
The judgment is affirmed. The appeal from the order denying the motion for a new trial is dismissed.
Rehearing denied.
Shenk, J., and Seawell, J., dissented.