285 P. 418 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *82 Appeal from a judgment given in an action for libel for failure to amend after the demurrer to the amended complaint had been sustained. Since the four causes of action set forth in such complaint are alike in form and substance except only as to the recipient of the respective notices and the amount therein stated as due, it will be sufficient, for the present purposes as suggested by counsel, to consider only the sufficiency of the first cause of action. As to the publication of the alleged libel it alleges "that the defendant . . . published, declared and circulated of and concerning the plaintiff by depositing in the United States mail, with postage thereon, directed and addressed to the Western States Life Insurance Company the following written, libelous and defamatory communication in words and figures, to wit:
"Cancellation Notice for Non-Payment of Premium. "San Francisco, Dec. 12th, 1927.
"To Western States Life Insurance Co. "995-Market St., "San Francisco.
"Payment has not been made at this office of the premium of $54.35 under Policy No. 141094 issued to Western States Life Insurance Co., loss, if any, payable to Ditto, *83 written to cover $400.00 on 1925 Ford Coupe at San Francisco, from July 31st, 1926.
"And you are hereby notified that unless said premium be paid on or before . . . days from the date of service of this notice, said policy, and the whole thereof, including the Mortgage Agreement, if any, will stand cancelled for non-payment of premium without further notice, and thereafter be null and void, and no liability will exist thereunder.
"In the event of cancellation as above, demand is hereby made on you for pro rata earned premium of $54.35 which must be paid at the San Francisco office of this Company without delay, and demand is also made on you for the return of said Policy to the undersigned.
"PROVIDENT FIRE INSURANCE CO. "By WATSON TAYLOR, General Agents."
Defendant urges that its demurrer was properly sustained because the notice is not libelous as (1) it does not refer to plaintiff either directly or by reference and (2) it does not constitute any charge against him.
[1] As to the first point, it is necessary that the words should have been published concerning the plaintiff and should have been understood by at least one third person to have concerned him. (De Witt v. Wright,
A consideration of this question as to whether the language is libelous in and of itself necessarily involves a consideration of the second point urged by the defendant, that is — the notice does not constitute any charge against the plaintiff. [3] If the language of the notice is fairly included within the definition of libel, given in section
[5] "Words not actionable in themselves may be made so by a colloquium and proper averments. (Newell on Slander, pp. 603, 613, citing Stancell v. Pryor,
The rule of construction to be applied to the complaint is well stated in Bettner v. Holt,
"In the interpretation to be placed upon language charging the publication of a libel, a court of justice is to put such construction upon the words which it contains as may be derived `as well from the expressions used as from the whole scope and apparent object of the writer.' (Spencer v. Southwick, 10 Johns. (N.Y.) 259; Cooper v. Greely, 1 Denio (N.Y.), 358.)
"And not only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published. So that in such cases the language is uniformly to be regarded with what has been its effect, actual or presumed, and its sense is to be arrived at with the help of the cause and occasion of its publication.
"And in passing upon the sufficiency of such language as stating a cause of action, a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of a complaint for libelous publication according to its natural and popular construction. (Townshend on Libel and Slander, sec. 133.)"
"It is not required that the facts be set forth with all the technicality or precision of an indictment, if the crime be imputed in the ordinary language usually employed to denote it in lay conversation." (Jarman v. Rea, supra, at p. 345 of 137 Cal.; see, also, Schomberg v. Walker, supra; Carl v.McDougal,
[7] But, in the innuendo, the complaint alleges that defendant, by the notice, meant to charge plaintiff with that crime, and was so understood by the Western States Life Insurance Company. As the words in the notice are not actionable per se,
the innuendo may only interpret their meaning but cannot introduce a meaning broader than the words naturally bear in view of the facts alleged in the inducement. (Grand v. Dreyfus,
Since the demurrer was good upon both points, the trial court properly sustained it and therefore the judgment is affirmed.
Tyler, P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 19, 1930, and a petition *89 by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 17, 1930.
All the Justices present concurred.