202 P. 669 | Cal. | 1921
The plaintiff brought this action to recover damages from the defendant for alleged slander. The demurrer to the second amended complaint was sustained without leave to amend, Judgment dismissing the action followed, from which judgment this appeal was taken.
[1] The respondent makes a preliminary objection and seeks a dismissal of the appeal upon the ground that it was taken from the order sustaining the demurrer, which is not appealable. The notice of appeal states that the plaintiff appeals from the judgment rendered on the twenty-seventh day of September, 1920. While the court sustained the demurrer on that date, the judgment of dismissal was not made until September 29th. It is this discrepancy upon which the respondent relies. Since it clearly appears that but one judgment was entered in the case, the defect is one which would not invalidate the appeal were there no further reference to the judgment (Wilson v. UnionIron Works Drydock Co.,
[2] The demurrer, which interposed the general ground of want of sufficient facts and the bar of the statute of limitations, should have been overruled. It is alleged in the complaint that the plaintiff was, and is, a teacher in colleges, academies, and graded schools, having the requisite skill and qualifications proper and necessary for the practice of his profession. He had always conducted himself with diligence, industry, and propriety, and had acquired and was acquiring gain and profits from the pursuit of his calling. At the time of the alleged slander he was the principal of one of the public schools of the city of San Diego. The defendant, who is alleged to have great influence by reason of his wealth, standing, and an official position, the exact nature of which is not clearly stated, intending to bring the plaintiff into public contempt, infamy, and disgrace among his neighbors and citizens generally, particularly all persons interested in the cause of public education in San Diego and other portions of the United States, and to cause it to be believed that the plaintiff was a person of bad character, and unfit and unqualified to be employed in his calling, business, and profession, and to cause the plaintiff *503 to be deposed, and lose his employment, and to be deprived of his livelihood, and to prevent plaintiff from being employed as teacher, said and uttered to a reporter of a newspaper published in San Diego certain slanderous, unprivileged, and uncalled-for statements, knowing and intending that the same would be given further circulation through the public press of San Diego and elsewhere. The statement was as follows:
"We are going to drop at least three principals and one department head of the high school from the staff of city school-teachers at the close of the current school year. These are Williams D. Edwards, principal of the Brooklyn; Archibald M. Fosdick, principal of the Florence, and Lewis M. Oberkotter, principal of the Grant, and W.S. Staley, in charge of the Commercial department of the high school. These changes have been recommended to the school board by principal Guy V. Whaley for the reason that he considers these positions as they exist, weak spots in the public school system of instruction."
It is further alleged in the complaint that the charges and words uttered by the defendant were false, malicious, and unprivileged, so far as this plaintiff is concerned, and that the defendant thereby publicly accused the plaintiff of being unfit and incompetent to be employed in his profession as teacher, and intended to and did assert that he was not a fit and proper person to teach in the public schools of San Diego, or elsewhere. Thus construct, the complaint states a cause of action. (Ingraham v. Lyon,
[4] The plaintiff also alleges that he has suffered actual damages. He avers that the false, malicious, and unprivileged publication by the defendant exposed him to hatred, contempt, ridicule, and obloquy, and were made by the defendant to so expose him, and that by reason of the slander he, the plaintiff, has suffered great mental anguish and has been, and is, and from henceforth will be, greatly injured and prejudiced in his reputation as a school-teacher, and has lost, and will continue to lose and be deprived of, great gains and profits which would otherwise have accrued to him in his calling, occupation, and profession, to his damage in the sum of fifty-five thousand dollars. The prayer of the complaint is for actual damages in that amount and for punitive recovery as well. Here was a sufficient allegation of general and special damages which, if proved, would entitle the plaintiff to recover. (Turner v. Hearst,
[5] The respondent contends that the plaintiff's original complaint is one for libel; that the second amended complaint, filed more than one year after the making of the statement by the defendant, sets up a new cause of action, to wit, slander, which is barred by section
For the foregoing reasons the demurrer to the second amended complaint should have been overruled.
The judgment is reversed, and the cause is remanded to the lower court with instructions to overrule the demurrer to the second amended complaint, with a reasonable time accorded to the defendant within which to answer.
Shaw, C. J., Lennon, J., Richards, J., pro tem., Sloane, J., Wilbur, J., and Shurtleff, J., concurred.