114 Cal. 266 | Cal. | 1896
This is an action to recover damages for an alleged libel by the defendants in a newspaper owned by them, to the injury of plaintiff. The jury rendered a verdict for plaintiff in the sum of one thou.
Appellants’ first contention is that the verdict is not sustained by the evidence; but this contention cannot be maintained. The .main issues of fact were whether or not the respondent was discharged as an employee by the firm of Cevasco & Co; and whether the alleged libelous matter was true. While the evidence upon these two issues was conflicting, there certainly was sufficient evidence to warrant the jury in finding in favor of the respondent upon both said issues.
Appellants contend that the judgment should be reversed on account of errors committed by the trial court with respect to the admissibility of evidence; but we think that this position taken by appellants is not tenable. When the defendant Crespi was on the stand as a witness for respondent, he was asked by the appellants whether or not the alleged libelous article was true; and an objection by respondent that this question was not in cross-examination ivas sustained; and this ruling is claimed to have been erroneous. But nothing was asked witness on -the examination in chief about the truth of the article, and we do not think the court erred in holding the question not proper on cross-examination; afterward the said witness was examined on the part of the appellants, when the whole matter of the truth of the article might have been properly gone into by the appellants, and was to a considerable extent. Upon cross-examination of the same witness by appellants he was asked whether or not the appellant Cevasco had not sued him on a certain note, and attached his interest in the paper, and an objection to this question by respondent was sustained. Whether or not this ruling was technically correct, it is evident that no harm could have been done to appellants by the ruling. The only purpose of the question was to show an unfriendly feeling on the part of the witness to the appellant Cevasco;
The foregoing are the only objections to rulings of the court as to the admissibility of evidence which are presented in the brief.
Appellants contend that the language alleged in the complaint to have been published is not libelous per se; and that, as no special damages were proved, respondent should not have recovered.
At common law there was great difieulty in determining, in actions of either slander or libel, when language was actionable per se—that is, language from which the lavr would presume damage—and when it was actionable only upon averment and proof of special damage. It is quite evident that such an action can rarely be successful where the plaintiff is compelled to plead and specifically point out and prove the time, place, mode, and circumstance of his damage. Under the earlier decisions in actions of slander words were held not to be actionable per se unless they imputed a crime involving moral turpitude; although, even in actions of slander, the rule was afterward greatly relaxed. But there was always a distinction running through the cases between actions of slander and actions of libel—between words spoken and words written or printed; and in actions of libel
However, in most of the states, there is a statutory definition of libel; and, in such case, language which is fairly included in such definition is libelous per se. It is only when the libelous meaning of the publication is covert—not apparent on the face of the language used— that averment and proof of special damage is required. Our code defines libel as follows: “Libel is a false and unprivileged publication by writing, pictures, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a
In the case at bar it is alleged in the complaint that the parties are all Italians by race, and members of what is known as the Italian colony of the city of San Francisco; that for many years plaintiff had been engaged in San Francisco in the business of railway and steamship agency, selling railway and steamship tickets, and doing all business incidental thereto; that such business was done principally with Italians; that such business required mutual confidence, and that great reliance was placed in plaintiff’s honesty, honor, and trustworthiness; and that defendants are also engaged in the same business, and are business rivals of plaintiff, having their place of business at No. 632 Montgomery street in said city. It is further averred that defendants are also the proprietors and publishers of a certain newspaper of general circulation called La Voce del Populo, which circulates among and is read by a large number of the Italian residents of said city, and is declared by defendants to be the organ of the Italian population in California; and that on November 16, 1893, and on several other occasions, the defendants published in the Italian language in said newspaper concerning plaintiff certain words, which, being translated into English, are as follows: “The agency of G. B. Cevasco & Co. must state besides, as a matter of truth, that since the 1st of November they were compelled to discharge Mr. M. G. Tonini for his conduct not irreprehensible.” It was further averred that afterward, on December 6,1893, the defendants made the further publication of language, which, being translated into English, is as follows: “We have received from the agency of G. B. Cevasco & Co. the following: ‘Mr. M. G. Tonini gives notice in a circular that he is no more at 632 Montgomery street, but that he has moved to another place his business.’ As a
We think that the language charged, upon its face, tended naturally, necessarily, and proximately, to produce some, at least, of the results mentioned in section 45 of the code above quoted; that its natural effect was to expose plaintiff to “ obloquy ”—among the definitions of which given by Webster are “ blame, reprehension”— and to “ injure him in his occupation”; and that, therefore, no averment or proof of special damage was necessary. “ To expose one to obloquy is to expose him to censure and reproach, as the latter terms are synonymous with the word obloquy.” (Bettner v. Holt, 70 Cal. 275.) Surely no intelligent man could read these publications without understanding them to mean that plaintiff was not an honorable person, and had been guilty of such reprehensible misconduct as should deter people from trusting him in his occupation. It cannot be justly said that the language does not import anything of a defamatory character concerning the plaintiff. (See Bettner v. Holt, 70 Cal. 270; Lick v. Owen, 47 Cal. 252; Edwards v. San Jose etc. Soc., 99 Cal. 431; 37 Am. St. Rep. 70; Fitch v. De Young, 66 Cal. 339.)
We do not see that in the matter of instructing the jury any error was committed prejudicial to appellants. It is no doubt the law that where the language of an alleged libel is unambiguous, it is the province of the judge to determine its construction; and that where it is capable of two constructions, the jury are to determine in what sense it was used. (Van Vactor v. Walkup, 46 Cal. 124; Townshend on Slander and Libel, secs. 281, 286.) In the case at bar, while the judge did not expressly state upon which of these two theories he pro
The judgment and order appealed from are affirmed.
Henshaw, J., and Temple, J., concurred.
Hearing in Bank denied.