Jefferson v. Chronicle Publishing Co.
238 P.2d 1018
Cal. Ct. App.
1952
Check Treatment

JAMES MONROE JEFFERSON, Appellant, v. CHRONICLE PUBLISHING COMPANY (a Corporation), Respondent.

Civ. No. 18613

Second Dist., Div. Three.

Jan. 4, 1952.

108 Cal.App.2d 538

Appellant‘s petition for a hearing by the Supreme Court was denied March 3, 1952. Carter, J., and Schauer, J., were of the opinion that the petition should be granted, and the following opinion was then filed:

danger, drove around the parked automobile, and then negligently placed himself in a position of peril by returning to the parked automobile when he was under no duty to go there. “[W]here the negligence of a defendant has imperiled human life, a person who takes such steps as are reasonably necessary to rescue or protect those imperiled is not contributorily negligent in voluntarily leaving a place of safety and incurring danger if he does not act with a recklessness which would not be warranted, under the circumstances, in the judgment of a prudent man.” (

.) In
, the court said at page 462 [31 P.2d 348]: “‘The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.‘” Appellant herein was not negligent as a matter of law. It was a question of fact for the trial judge as to whether plaintiff was contributively negligent. The evidence amply supports the express and implied findings of the court. The appeal has no merit.

The judgment is affirmed.

Shinn, P. J., and Vallée, J., concurred.

Clyde Thomas for Appellant.

Cooper, White & Cooper, Sheldon G. Cooper and Robert M. Raymer for Respondent.

VALLÉE, J.—Plaintiff sued defendant, a newspaper publisher, for libel. He did not allege that he had suffered special damage, and admittedly could not cure the omission by amendment. The court sustained defendant‘s demurrer to the complaint without leave to amend on the specific ground it was not alleged that a correction had been demanded as required by section 48a of the Civil Code. Plaintiff appealed from the judgment which followed.

Plaintiff contends section 48a of the Civil Code is violative of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

The point has been settled contrary to plaintiff‘s contention. Irrespective of our view as to the constitutionality of section 48a, we are bound to follow the decision of the Supreme Court in

. In the
case it was held that section 48a is not invalid under either the due process clause or the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

As this point was the only one considered by the trial judge, and as it is decisive of the appeal, it is unnecessary to consider other points made by respondent in support of its contention that the complaint does not state facts sufficient to constitute a cause of action. (

;
;
.)

Affirmed.

Shinn, P. J., and Wood (Parker), J., concurred.

JAMES MONROE JEFFERSON, Appellant, v. CHRONICLE PUBLISHING COMPANY (a Corporation), Respondent.

Civ. No. 18613

Second Dist., Div. Three.

March 3, 1952

SCHAUER, J.—As pointed out in my dissent in

, the United States Supreme Court has not yet passed on the validity of section 48a of the Civil Code of California.

The question was raised in

, but after an appeal to the United States Supreme Court was filed (19 U.S. Law Week 3074) and probable jurisdiction noted (19 U.S. Law Week, Nov. 14, 1950, Index, p. 20) the cause was dismissed in the United States Supreme Court on motion of the plaintiff, presumptively for a consideration paid by the defendants.

My views as to the invalidity of section 48a are expressed in the dissents of Justice Carter and myself as reported in

, and in
.

For the reasons therein stated I would grant a hearing and reconsider the questions raised.

Carter, J., concurred.