174 P. 312 | Cal. | 1918
This is an appeal from an order granting the defendant's motion for a new trial in an action for libel wherein the plaintiff was awarded compensatory damages in the sum of ten thousand dollars and exemplary damages in the sum of twenty thousand dollars by the verdict of a jury. A motion for a new trial having been made upon all the statutory grounds, the same was granted by a general order of the trial court. The main contention urged by the appellant as one of the grounds for the reversal of that order is that the trial court abused its discretion in attempting to set aside the verdict of the jury as to both of these elements and amounts, of damage. A brief consideration of the nature of the action is essential to a determination of this as well as of the other points in the case. The plaintiff in his complaint alleged that he was at the date of filing the same, and for some twenty years or more prior thereto had been, an attorney at law of the several courts of record of the state of California, practicing his profession principally in Los Angeles, but also in several other counties of the said state and also in the state of Arizona, and that as such attorney at law he had always conducted and demeaned himself with honesty and fidelity and without any misconduct or malpractice in his said profession, and had thereby come to enjoy, and did enjoy, a good name and reputation as an attorney at law. He then proceeded to allege the facts and details of the publication complained of, which consisted of an article on a report regarding a certain action for divorce in which the plaintiff herein appeared as attorney of record for the plaintiff therein, with certain insinuations and animadversions reflecting upon the conduct of this plaintiff in the matter of advising and commencing said action, all of which this plaintiff alleged to be maliciously and knowingly false and to have been published with express malice and ill-will on the part of the defendant toward this plaintiff, and with the intent to injure him in his professional standing and reputation and to bring him into public discredit as an attorney at law, by reason whereof he had suffered ten thousand dollars actual and fifty thousand dollars exemplary damages. The answer of the defendant admitted the publication of the article complained of, but denied that it was either false or malicious. *690
The defendant also, basing its denial upon the want of sufficient information, denied specifically the averments of the plaintiff's complaint respecting his general conduct as an attorney at law during the period of the practice of his profession; and upon the same ground denied that during all or any of the said period prior to the date of the publication of said article the plaintiff had or enjoyed a good name or reputation as an attorney at law. It would serve no useful purpose to restate or review at length the evidence presented upon these issues upon the trial and embraced in the somewhat voluminous record before us upon this appeal. It is the well-settled rule of this court that when the order of the trial court in granting a new trial is general in its terms, it will be affirmed if it could properly have been granted upon any of the grounds upon which the motion for it was predicated. (Weisser v. Southern Pac. R. Co.,
It would seem to be obvious that such a presumption as the appellant contends for could not exist, since an individual may have a perfectly good reputation as such and yet may have no reputation at all as a lawyer or doctor or engineer, though he may also be such, for the simple reason that he has not practiced his profession to the extent or with the degree of success necessary to acquire such a reputation. It would also seem to be obvious that the plaintiff would not have been entitled to claim and recover damages for an injury to his professional reputation as an attorney at law without alleging in his complaint that he was such attorney at law and that he had acquired a reputation as such. If this be true, it would follow that the rule of pleading in ordinary libel cases to the effect that it is not necessary for the plaintiff in the first instance to allege his possession of a good reputation could have no application to a complaint in which the pleader seeks to recover damages for injuries to his reputation in respect to a particular trade, occupation, or profession. In the latter case the averment would be essential and its denial would raise a material issue so as to require affirmative proof on the part of the plaintiff as to his possession of the particular kind of business or professional reputation which he asserted had been injured by the publication. In the instant case the plaintiff did allege his possession of a professional reputation as an attorney at law. The defendant denied specifically the plaintiff's averments in that regard. A material issue was thus presented, upon which the plaintiff had the affirmative and was bound to offer evidence. He did so and the trial court properly admitted the evidence thus offered, and latter improperly ruled, upon motion for a new trial, that its original action in admitting such evidence was error, for which a new trial should be granted. The new trial was, however, properly granted upon other grounds, and our ruling upon this particular ground is given for the guidance of the court upon a retrial of the care.
Order affirmed.
Shaw, J., and Sloss, J., concurred. *693