Majority
This is an appeal by defendants Harry and Ray Hoefler from a judgment in an action for slander awarding plaintiff John F. Mercado $17,500 as compensatory damages.
The record discloses that appellant Harry Hoefler was the operator of six real estate offices in Northern California. The appellant Ray Hoefler managed the San Jose office where respondent was employed as a real estate salesman. Prior to October of 1952 and during his employment, respondent handled three different deals for a Mr. Yoshihara, a Nisei, all of which fell through, including a prospective sale of a home owned by a Mr. Amstutz. A petition signed by residents in the neighborhood protesting the sale of the Amstutz home to any non-Caucasian was presented to Ray Hoefler by one of the petitioners and was placed in the office files. Subsequently respondent, at the request of Mr. Amstutz, obtained the peti
On argument before this court, the parties concede that said remarks are defamatory per se. However, each has his separate contentions as to why the judgment should be reversed. Appellant Harry Hoefler contends that he is not liable for the remarks made by Ray Hoefler and that the judgment against him cannot be supported on any basis, and particularly not upon any relationship of partner, joint venturer, or master and servant. He also cites error on the part of the court in admission of evidence, comment by the court, and the instructions to the jury.
At the trial, respondent asserted the appellants were partners, and presented evidence to this effect which was strenuously opposed by Harry Hoefler and the jury was instructed upon the subject. He contends that the issue of partnership was not raised by the pleadings and hence the reception of any evidence or instructions thereon was error. This argument cannot stand, for the question of partnership was raised in the pretrial order which effectively put this matter into issue at the trial. (Rule 8.8, Rules for the Superior Courts.) The burden of proving the existence of a partnership lies upon the party asserting its existence, in this case.the respondent. (Milstein v. Sartain (1943), 56 Cal.App. 2d 924 , 932 [ 133 P.2d 836 ].) Testimony was produced that Ray Hoefler, as manager, controlled the San Jose office, that he received no salary as office manager but that he divided the net income of the San Jose office equally with Harry. Whether an agreement to share profits constitutes the undertaking of a partnership or merely a method of pay
This appellant next points out that joint venture was not in issue under the pleadings or specifically put in issue by the pretrial order, and that it was error for the court to instruct the jury as to this theory of liability. This contention is untenable, for if a ease is tried on a theory which is sufficient and evidence accordingly is received without objection, the sufficiency of the pleading may not later be attacked upon this ground (McClure v. Donovan (1949), 33 Cal.2d 717 , 731 [ 205 P.2d 17 ]), and particularly in the present situation where there are a great many similarities between joint venture, and partnership which was in issue under the pretrial order. The existence of a joint venture, like that of a partnership, is a question of fact. (Nels E. Nelson, Inc. v. Tarman (1958), 163 Cal.App.2d 714 , 724 [ 329 P.2d 953 ].) Since the jury could have found the relationship between Harry and Ray Hoefler to be that of joint venturers, the judgment as to Harry Hoefler on this theory would be warranted.
The appellant Harry Hoefler next contends that even if it be assumed that Ray was his employee, his remarks were not within the scope of his employment, and therefore he sustained no liability by reason thereof. It is well established that a principal can be liable for the malicious torts of his employee committed within the scope of his employment, despite any contention that the employee may not have had authority to engage in tortious conduct. (Carr v. Wm. C. Crowell Co. (1946), 28 Cal.2d 652 , 654 [ 171 P.2d 5 ]; Fields v. Sanders (1947), 29 Cal.2d 834 , 841 [ 180 P.2d 684 , 172 A.L.R. 525 ].) The transcript indicates that there was sufficient evidence for the jury to find that Ray Hoefler as manager was acting within the scope of his authority in speaking for his firm, which was concerned in the racial controversy, particularly Ray Hoefler’s testimony which expressed his concern for the firm’s reputation and motivated his remarks
The appellants jointly contend that the trial court erroneously denied their motions for nonsuit, directed verdict, and judgment notwithstanding the verdict. The basis of this argument is that respondent failed to comply with the provisions of Civil Code, section 48a, which requires a demand for correction “ [i]n any action for damages for the publication of a libel in a newspaper,” otherwise the plaintiff is limited to special damages. Respondent points out that appellants failed to make reference to failure to comply with this code section in their answers. However, it would appear that where in fact the section is applicable it is the plaintiff’s duty to plead compliance therewith. (Pridonoff v. Balokovich (1951), 36 Cal.2d 788 , 791 [ 228 P.2d 6 ].) However, we have concluded this section is not applicable to the present action, which is one for slander, not libel. Civil Code, section 46, defining slander, includes language which upon its face has a natural tendency to injure a person’s reputation either generally or with respect to his occupation. (Semple v. Andrews (1938), 27 Cal.App.2d 228 , 232 [ 81 P.2d 203 ].) The mere fact that oral defamation is subsequently quoted or printed in a newspaper does not make it libel. It is still slander. (Oberkotter v. Woolman (1921), 187 Cal. 500 , 505 [ 202 P. 669 ]; Semple v. Andrews, supra.) The repetition of slander may be shown, as was done here, since it bears on the extent of liability. (Schessler v. Keck (1956), 138 Cal.App.2d 663 , 669 [ 292 P.2d 314 ]; Rest., Torts, § 576.) The appellant argues that labeling the defamation slander is a devious way to circumvent the intended legislative effect of the section. Although the application of the section extends beyond newspapers themselves to some processes related to them (see Pridonoff v. Balokovich, supra, involving the author of a newspaper article; Farr v. Bramblett (1955), 132 Cal.App.2d 36 [ 281 P.2d 372 ], involving the advertisers of a libelous advertisement), it has been pointed out that the section was enacted primarily to protect news dissemination. (Werner v. Southern Calif, etc. Newspapers (1950), 35 Cal.2d 121 , 128 [ 216 P.2d 825 , 13 A.L.R.2d 252 ].) If appellants’ argument were to prevail, persons guilty of
The appellants contend that the trial court erred in admitting into evidence certain newspaper clippings. .The first three concerned the local controversy regarding the alleged refusal to sell the Amstutz home to a non-Caucasian. The fourth contained the defamatory statements made by appellant Ray Hoefler to the reporter. Counsel for both appellants objected to introduction of the clippings on the ground of noncompliance with Civil Code, section 48a. In view of the earlier discussion regarding Civil Code, section 48a, we find no error in the admission of this evidence. Thereafter, counsel for appellants objected on the ground that the clippings were hearsay, and incompetent, irrelevant and immaterial. The evidence was admitted for the limited purpose of showing the notoriety given the racial controversy in the local press, and was not to be considered as evidence of the truth of the matter stated therein. Where the fact of statements having been made is in controversy, rather than the truth of their contents, such are excepted from the hearsay rule. (People v. Henry (1948), 86 Cal.App.2d 785 , 789 [ 195 P.2d 478 ].) The admissibility of the clippings turns on their materiality and relevancy. The original utterer of slanderous remarks can be liable for the consequences of republications to third persons. (Schessler v. Keck, supra.) The background of notoriety and publicity preceding the slanderous remarks certainly is indicative of the possibility of aggravated harm caused when such comments were made to a newspaper reporter; thus the clippings were material to the issue of damages. The relevancy of evidence is tested by whether it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. (People v. Jones (1954), 42 Cal.2d 219 , 222 [ 266 P.2d 38 ].) A wide discretion is left to the trial judge in determining the relevancy and admissibility of evidence. (Decter v. Stevenson Properties, Inc. (1952), 39 Cal.2d 407 , 420 [ 247 P.2d 11 ].) Appellants urge that publications other than the one sued upon are inadmissible unless they bear upon malice or mitigation of damages (citing Newby v. Times-Mirror Co. (1920), 46 Cal.App. 110 , 126 [ 188 P. 1008 ]). However, it is clear that aggravation of damages is merely the opposite side of
The appellant Eay Hoefler contends that the effect of combining three instructions was to tell the jury that the words plaintiff complained of were false as a matter of law. Where such is the effect of instructions, prejudicial error is committed. (Nova v. Flaherty (1956), 145 Cal.App.2d 761 , 763 [ 303 P.2d 382 ]; Rudolph v. Gorman (1959), 169 Cal.App. 2d 666 , 670 [ 338 P.2d 218 ].) Here the jury was instructed: that as a matter of law the remarks were slander per se (respondent’s instruction No. 7[1] ); that slanderous per se language fell within the definition of slander (respondent’s instruction No. 10[2] ); and the definition of slander which included the terminology “false publication” (respondent’s
1 "Plaintiff’s Instruction No. 7 . . .: “I have determined as a matter of law that the words alleged in plaintiff’s Complaint constitutes [sic] slander, per se. Per se is a Latin term which means in itself. This means that if you find that said words were in fact spoken by the defendants, acting by and through the defendant, Bay Hoefler—I will start that over again. I have determined as a matter of law that the words alleged in plaintiff’s Complaint con stitute[s] slander, per se. This means that if you find that said words were in fact spotcen by the defendants, acting by and through the defendant, Bay Hoefler, of and concerning the plaintiff, to some third person, and that they were untrue, the plaintiff’s ease has been made out and he is not required to prove any actual damages, but may recover such damages as you, in your sound discretion, deem just and reasonable. ’ ’ [Emphasis supplied. ]
2 "Plaintiff’s Instruction No. 10 . . .: “In construing language charged as slanderous, it is necessary to consider the utterance as a whole and you must place yourself in the position of a listener, under the circumstances of the publication. A statement which is slanderous, per se, is an utterance which, upon its face, falls within the definition of slander. This definition is very broad and includes almost any language which, upon its face, has a natural tendency to injure a person’s reputation, either generally or with respect to his occupation. If one publishes an utterance which is slanderous, per se, it is not necessary that the plaintiff prove any special damage. When language is used concerning a person or his affairs which, from its nature, necessarily must, or presumably will, as its natural and proximate consequence, occasion him pecuniary loss, its publication prima facie constitutes a cause of action, and prima facie constitutes a wrong without any evidence of damage other than that which is implied or presumed from the face of the publication. ’ ’ [Emphasis supplied.]
In addition to the seventh instruction of respondent, several other instructions were given which also told the jury in effect that it was necessary for them to find untruth before liability could be imposed. The eomplained-of instructions correctly defined the law and no prejudice was suffered in
3 " Plaintiff’s Instruction Number 2 . . .: “Slander is a false and unprivileged publication, other than libel, which charges any person with crime or tends directly to injure him with respect to his profession, trade or business, either by imputing to him general disqualification in those respects, which his occupation peculiarly requires, or by imputing something with reference to bis profession, trade or business which has a natural tendency to lessen its profits. ’ ’ [Emphasis supplied.]
The jury was instructed that if they found implications from the remarks made, such as unethical conduct, or lack of requisite qualities for business, the appellants’ burden on the defense of truth carried to these imputations. (Respondent’s instructions No. 25,[4] and No. 25-a.[5] ) The appellant Ray Hoefler cites Jarman v. Rea (1902), 137 Cal. 339 , 345 [ 70 P. 216 ]; Bates v. Campbell (1931), 213 Cal. 438 , 443 [ 2 P.2d 383 ], for the proposition that innuendo may not enlarge or add to the publication. These cases made statements to that effect in dictum while holding that where language was defamatory per se, innuendo was not necessary and proof of special damages was not required. The appellant attempts to reinforce his argument with the point that when language is defamatory per se, it must be unambiguous. {Maher v. Devlin, supra, at p. 278.) Therefore, there should be no need to go beyond the language itself. The court made that statement when holding that language could not be both defamatory per se and capable of an innocent meaning. However, since that time the Supreme Court has held that language may be libelous on its face even though susceptible of an innocent interpretation. (MacLeod v. Tribune Publishing Co.
4 "Plaintiff’s Instruction Number 25 . . .: "If you find that the defendants, acting by and through the defendant Bay Hoefler, uttered certain slanderous statements -which were false and untrue, and which imputed to the plaintiff a general disqualification in those respects, which Ms profession peculiarly requires, then you are instructed that the plaintiff is entitled to your verdict. Truth is a defense to a charge of slander, but the burden of proving the truth of the remarks rests with the defendants. The defendants must prove the truth of the charge they made against the plaintiff in their remarks about him, and the defense of truth must he as broad as the charge made by the defendants. If, in their remarles, the defendants implied unethical conduct on the part of the plaintiff, or that he was guilty of violating business ethics, or that he was not possessed of qualities peculiarly required by one engaged in his business, it is incumbent upon the defendants to prove those charges and each of them are true. If they fail to establish the truth of the charges, the defense of truth will fall and plaintiff will be entitled to your verdict. ’ ’ [Emphasis supplied.]
5 "Plaintiff’s Instruction Number 25-a . . .: "To constitute the defense of truth, the defendants must prove the truth of the imputation carried by the word spolcen, and it is not sufficient that they prove the literal truth of the words spoken. Where the imputation of spoken words is that a real estate salesman is incompetent or unethical, the defense of truth must establish that he is in fact incompetent and unethical. Proof that the words spoken were literally true, would not be sufficient to establish the defense of truth. ’' [Emphasis supplied.] -=■
Appellant Harry Hoefler contends that when the judge commented during the trial that the appellants were partners, prejudicial error was committed. However, the judge admonished the jury that his statement did not constitute evidence and that they were to consider only the witnesses’ testimony. The jury was also instructed that it was the sole trier of fact and in our opinion these admonitions or instructions cured the error, if any. (Jones v. Bayley
6 "Defendant Bay Hoefler’s Instruction Number 10 . . .; "You are instructed that, in this action if the substantial imputations of the defendant, Bay Hoefler’s statements be proved true, a slight inaccuracy in the details will not prevent a judgment for the defendants, if the inaccuracy does not change the complexion of the affair, so as to affect the listener to or the reader of the statement differently than the actual truth would. It is not the mere fact that a difference exists between the statement of the defendant and what actually occurred, that determines the presence of the slander. The question you are to ask yourselves is, is the difference of a substantial character, and does it produce a different effect ? If the difference is not substantial and does not produce a different effect, then you are to return a verdict in favor of the defendants.” [Emphasis supplied.] "Defendant Bay Hoefler’s Instruction Number 18 . . .: "In construing the meaning of language charged as slanderous, not only the expressions used but also the apparent object of the writer or speaker and the whole scope of the matter as well as the cause and occasion of the publication must be considered.” [Emphasis supplied.]
The judgment as to each appellant is affirmed, and the order denying each appellant’s motion for judgment notwithstanding the verdict is likewise affirmed.
Kaufman, P. J., and Draper, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied May 10, 1961.
Cases cited
- Milstein v. Sartain 56 Cal.App. 2d 924 at 932 p. 16
- Nelson v. Abraham 29 Cal.2d 745 at 750 p. 17
- Dills v. Delira Corp. 145 Cal.App.2d 124 at 133 p. 17
- McClure v. Donovan 33 Cal.2d 717 at 731 p. 17
- Nels E. Nelson, Inc. v. Tarman 163 Cal.App.2d 714 at 724 p. 17
- Carr v. WM. C. Crowell Co. 28 Cal.2d 652 at 654 p. 17
- Fields v. Sanders 29 Cal.2d 834 at 841 p. 17
- Draper v. Hellman Commercial Trust & Savings Bank 203 Cal. 26 at 38 p. 18
- Pridonoff v. Balokovich 36 Cal.2d 788 at 791 p. 18
- Semple v. Andrews 27 Cal.App.2d 228 at 232 p. 18
- Oberkotter v. Woolman 187 Cal. 500 at 505 p. 18
- Schessler v. Keck 138 Cal.App.2d 663 at 669 p. 18
- Farr v. Bramblett 132 Cal.App.2d 36 p. 18
- Werner v. Southern California Associated Newpapers 35 Cal.2d 121 at 128 p. 18
- People v. Henry 86 Cal.App.2d 785 at 789 p. 19
- People v. Jones 42 Cal.2d 219 at 222 p. 19
- Decter v. Stevenson Properties, Inc. 39 Cal.2d 407 at 420 p. 19
- Newby v. Times-Mirror Co. 46 Cal.App. 110 at 126 p. 19
- Hatfield v. Levy Bros. 18 Cal.2d 798 at 810 p. 20
- Nova v. Flaherty 145 Cal.App.2d 761 at 763 p. 20
- Rudolph v. Gorman 169 Cal.App. 2d 666 at 670 p. 20
- Maher v. Devlin 203 Cal. 270 at 278 p. 21
- Williams v. Seiglitz 186 Cal. 767 at 772 p. 21
- Larrick v. Gilloon 176 Cal.App.2d 408 at 417 p. 21
- Tuttle v. Crawford 8 Cal.2d 126 at 134 p. 22
- Valentine v. Provident Mutual Life Insurance 12 Cal.App.2d 616 at 622 p. 22
- Jarman v. Rea 137 Cal. 339 at 345 p. 22
- Bates v. Campbell 213 Cal. 438 at 443 p. 22
- Macleod v. Tribune PublishIng Co. 52 Cal.2d 536 at 549 p. 23
- Charves v. San Francisco-Oakland Terminal Railways 44 Cal. App. 221 at 225 p. 23
- Hughes v. Pacific Electric Railway Co. 58 Cal.App. 375 at 380 p. 23
- Jones v. Bayley 49 Cal.App.2d 647 at 657 p. 24
- McCullough v. Langer 23 Cal.App.2d 510 at 522 p. 24
- Ades v. Brush 66 Cal.App.2d 436 at 445 p. 24
- Thompson v. Hickman 89 Cal.App.2d 356 at 364 p. 24