White v. Valenta

On October 14, 1962, appellant saw an unidentified automobile parked on his premises. He assumed that the car belonged to one of respondent’s corporations or to a customer of the corporations and tried to reach respondent on the telephone. He was told that respondent was delivering a television commercial. Nevertheless he demanded that respondent personally and immediately remove the car. Respondent’s sales manager then talked to appellant and told him that a porter would remove the ear.^[1] During this conversation appellant was angry and abusive. There had been some bad blood between the parties in the past and appellant did not feel kindly toward his neighbors, their employees or respondent personally.

At the end of this telephone conversation appellant left his office and saw respondent on the car lot with other persons in his presence. Because the car had not yet been removed he became angry and proceeded directly toward respondent, intending to talk to him about the removal of the car. Two employees of one of respondent’s corporations tried to restrain appellant, telling him that respondent was on the air, broadcasting a television commercial, as indeed he was. Apparently there was a minor scuffle during which appellant’s shirt sleeve was torn off. Undeterred, he proceeded toward respondent, entering the range of the television camera and the microphone from the right, as seen by respondent’s viewing audience. He pointed and waved his hand and finger at respondent in a menacing gesture, saying something which was not too clearly heard by anybody. (A member of the television audience, however, understood the words: “You son-of-a-bitch ” and also heard that something was said about a car. She identified appellant as the speaker and understood the words to refer to respondent. She thought that appellant was a customer who had some grievance in connection with the purchase of an automobile from respondent and came to the conclusion that if one bought a car from, respondent, one might expect unfavorable treatment. She hefself however was not in the market for an automobile at the time.

The settled statement under the heading "The Facts Established In The Trial” states further, without identifying the additional witness who testified thereto: “ [Appellant] pointed and waved his hand and finger at [respondent] in a menacing gesture, stating to [respondent] : ‘You son-of-a-bitch ’ and the

word ‘car’ was used by [appellant].’’ It is apparent that it was not the intention of the trial court, in settling the record, to imply that the use of the epithet coupled with mention of a ear was either conceded by the parties or established without contradiction. Viewing the matter set forth in its entire context, we have come to the conclusion that the most reasonable interpretation of the settled statement is that it was respondent himself who also testified that these particular words were used.

The only other persons who heard what appellant said were: 1. Three employees of one of respondent’s corporations, who were present at the scene and who heard him say “you son of a bitch, ’ ’ but who did not testify as to any particular meaning they attached to the words. 2. Two employees of the television station who, while monitoring the program, saw appellant enter the picture, approach respondent, make the threatening gesture with his hand and also saw respondent back up. One of these employees recalled that appellant used profanity of some sort, believed that the words “you son of a bitch” were spoken, recalled that whatever was said made the broadcast offensive to studio policy and standards and that he cut it off. The other employee did not hear the words “you son of a bitch. ’ ’

The only injury complained of by respondent was personal shame, embarrassment and humiliation. He worried that the incident might hurt the corporations’ business, but the emotional distress was not such as to require medical attention. His fears, however, were unjustified and special damages were neither pleaded nor proved.

The facts related so far appear to be those developed by respondent as his part of the ease.^[2] There was conflicting evidence as to whether appellant physically touched respondent, but it was conceded that no physical injury was suffered, respondent being merely startled and apprehensive, because appellant seemed to him to be like a "charging bull." Appellant denied speaking the offending words and claimed that they were used by respondent in ordering him off his property. He admitted his anger, that he shook his hand at respondent and that he demanded the removal of the automobile. He claimed not to have known that respondent was on the air, having paid no attention to the television equipment. The torn

facts or other circumstances that may tend to mitigate or lessen the culpability of defendant’s conduct. It is inconceivable to us that they would have awarded $2,500 in punitive damages had they believed appellant.

In holding that appellant is not protected by section 48a, we do not mean to imply that only the owner, licensee or operator of a radio or television station may claim its benefits. Appellant correctly points out that because of Civil Code, section 48.5, which severely restricts the liability of such owners, section 48a would have little significance when applied to broadcasting, if others were not covered, We are perfectly willing to assume that the principle of Pridonoff v. Balokovich, supra, should be applied in the broadcasting field. We merely hold that an intruder is not protected.

At the outset of our discussion of appellant’s second point, namely that because the words spoken do not constitute slander per se, respondent could not recover without pleading and. proving special damages, we are met with a rather strange state of the record. The only specific words appellant is supposed to have said according to the complaint are the words “you son of a bitch. ” Apparently, however, respondent was permitted to prove not only the utterance of those words, but also that they were spoken in connection with the use of the word “car.” It is obvious that their use in that connection tends to bring the entire utterance closer to the type of language proscribed by Civil Code, section 46, subdivision 3.^[3] We must assume therefore that the range of permissible proof was enlarged by a failure to object. (See Collison v. Thomas, 55 Cal.2d 490 , 498 [ 11 Cal.Rptr. 555 , 360 P.2d 51 ]; Vaughn v. Jonas, 31 Cal.2d 586 , 605 [ 191 P.2d 432 ].) On the other hand the court’s key instruction set forth in the footnote^[4] disregards the additional language. It seems probable that

both parties and the court did not feel that the additional language incorporating the word ‘ ‘ car, ’ ’ which was not clearly understood by any listener, could properly be considered as part of the allegedly slanderous statement, but was part of the background which could be considered in determining whether or not the words “son of a bitch” could reasonably carry a defamatory meaning within the sense of Civil Code, section 46, subdivision 3. We, too, will consider the mention of a car as not being part of the alleged slander, but, to prevent any misunderstanding, we further state that we would reach our conclusions regardless of whether or not the word “car” was used at all.

Appellant’s contention that unless the words used are defamatory without the pleading of extrinsic facts and circumstances existent at the time of their utterance, in other words unless they are defamatory “on their face,” special damages must be pleaded and proved, is based upon what we believe to be a misunderstanding of California law. In the English common law the question of special damages was relevant only in connection with slanders which were not classified as slander “per se.”^[5] (See Prosser, Law of Torts (3d ed. 1964) § 107, p. 772; Rest., Torts, §§ 570-574.) The problem of having to plead extrinsic facts by way of innuendo and inducement to state a cause of action where the defamatory meaning of the communication was not apparent from its face, had nothing to do with the problem of special damages. It was simply a rule of pleading which required the pleader to set forth the defamatory meaning on the face of the complaint. (See Grand v. Dreyfus, 122 Cal. 58 , 61-64 [ 54 P. 389 ].) It applied to actions of libel as well as to actions

of slander and to the latter whether they were slanderous “per se” or whether they required proof of special damages. (Rest., Torts, § 563; Prosser, op.cit., § 106, p. 763 ff.) Starting with Tonini v. Cevasco, 114 Cal. 266 [ 46 P. 103 ], California embarked upon a new rule: In libel actions, if the defamatory meaning of the language used was not apparent on its face, averment and proof of special damages were required. Tonini was later modified by Schomberg v. Walker, 132 Cal. 224 , 227-228 [ 64 P. 290 ]. Both Tonini and Schomberg involved libels. Strangely, as far as slander actions were concerned, the rule of Tonini was apparently never applied. In Jarman v. Rea, 137 Cal. 339 [ 70 P. 216 ], a slander case, the Supreme Court expressly held that damages would be presumed and that special damages need not be pleaded or proved although to make the words actionable an inducement had to be pleaded: “Where the words are actionable in themselves there is no occasion for [sic] inducement to be alleged, but where the words are not actionable they may be made so by the inducement, and it is then no more necessary to allege special damages than where the words are actionable in themselves. So long as they are made actionable by appropriate pleading, it is immaterial whether this comes about through the words themselves or through the words coupled with the inducement. ” (Ibid. p. 345.) This anomalous situation which required the pleading and proof of special damages in libel actions if the defamatory meaning was not apparent on the face of the communication, however heinous the imputation to plaintiff’s character in the light of extrinsic circumstances, but allowed recovery of general damages in slander actions, as long as the innuendo and inducement brought the defamatory meaning within the first four subdivisions of Civil Code, section 46 has been severely criticized. (See Carpenter, Libel Per Se in California and Some Other States, 17 So. Cal. L. Rev. 347.) Although according to Professor Prosser, some 35 states have departed—like California—from the common law in that they require pleading and proof of special damages where libels are not defamatory on their face, it seems that a large number of them do not require such pleading and proof where they would not do so if the action sounded in slander. (Prosser, op.cit., p. 782.) California as we have seen is not one of the latter. Jarman v. Rea, supra.^[6]

In Professor Carpenter’s article, noted above, he characterized the new doctrine as a “misbegotten monster” and said that he was writing his article for the “benefit of lawyers and courts of the States that have produced the new offspring, so that they may see that it is a new creature, and that it is ugly and illegitimate and ought promptly to be strangled.” (Ibid., p. 347). Our Legislature, feeling perhaps that the courts might help the author achieve his purpose, legitimized the offspring by enacting Civil Code, section 45a.^[7] Finally in 1959 our Supreme Court gave it eminent social standing in MacLeod v. Tribune Publishing Co., 52 Cal.2d 536 , 548-550 [ 343 P.2d 36 ]. The purpose of the doctrine was said to be to protect publishers “who make statements innocent in themselves that are defamatory only because of extrinsic facts known to the reader.” (Ibid., p. 550).^[8]

Parenthetically it should be noted that the rule of Tonini and Schomberg is today not quite as illogical as it was before : In 1896, when Tonini was decided, the easiest way to reach a mass audience was through writings. A rule of law which made it more difficult to state a cause of action for libel than for a spoken utterance certainly was an anomaly in those days. Today the easiest way to defame a person within the hearing of millions is by radio and television which, in California, are deemed slanders. Thus has technology, in part at least, rectified a legal oddity.

It could of course be argued that the word “libel” in section 45a is used broadly to include all defamatory statements, oral or written. This interpretation is impossible to accept, in view of the clear distinction made between libel and slander by the Legislature throughout the code sections dealing with defamation (Civ. Code, §§ 44-48.5) and particularly in light of the fact that the very same chapter of the statutes of 1945 which contained section 45a also made significant changes in section 48a in which the difference between libel and slander is expressly recognized.

It follows therefore that appellant’s premise is unsound. If by way of innuendo and inducement the words spoken by him are fairly susceptible of a defamatory, meaning within the boundaries staked out by Civil Code, section 46, subdivision 3, no special damages had to be pleaded or proved.

As we read the record appellant has never taken the position, either below or in this court, that the words “son of a bitch” cannot acquire a defamatory meaning through extrinsic facts. We have carefully read the contentions made in his motion for judgment on the pleadings, in his brief in support of his motion for judgment notwithstanding the verdict and in his briefs before us and find that it is conceded that under proper extrinsic circumstances the words in question could reasonably be understood in a defamatory sense.^[9] We agree. Literally, of course, the words “son of a bitch,” spoken of a human being, imply a miracle of nature. As a practical matter, they are sometimes used, as appellant points out, with a wide variety of meanings, ranging from joviality and endearment to various shades of opprobrium. It seems clear from appellant’s general demeanor when approaching respondent that he did not intend to be endearing.

Although there are many cases which deal with the use of the word “bitch” when addressed to a female, cases discussing the defamatory meaning of “son of a bitch” are surprisingly few.^[10] The only case involving the use of the words “son of a bitch” addressed to a male plaintiff which we have found is Ringgold v. Land, 212 N.C. 369 [ 193 S.E. 267 ]. That case merely holds that these words, without more, do not impute that the plaintiff was guilty of a crime and are therefore not actionable without special damages. There are several other cases involving female plaintiffs who, unaccountably, have been called “son of a bitch.” The question in each of those eases is merely whether or not the words can impute a lack of chastity, which is answered by various courts in various ways.

In spite of appellant’s apparent concession that under appropriate extrinsic facts the words uttered by him can take on a defamatory meaning, the point is troublesome, but after giving the matter considerable thought, we have come to the conclusion that the trial court’s affirmative answer was correct.

At the time when the words were spoken respondent was engaged in one facet of his calling, he was trying to sell automobiles to what he hoped was a large home audience. Into this familiar tableau steps an angry man who, with menacing gestures, hurls the subject epithet at the speaker. We cannot say that the television viewer’s conclusions of the defamatory meaning of his language were unreasonable under the circumstances. Nor can we agree with appellant’s argument which, if we understand it correctly, is to the effect that the implications adverse to respondent drawn by this witness are not such as to impute to him a general disqualification in those respects which his occupation “peculiarly” requires, as the language of Civil Code, section 46, subdivision 3, demands.^[11] Appellant appears to argue that unless the im

plication of the language is such as to impute a disqualification in those respects which the plaintiff’s occupation—and none other—requires, the statutory standard is not met. We do not read the cases as imposing so strict a requirement. For example, in Swan v. Thompson, 124 Cal. 193 [ 56 P. 878 ], the Supreme Court found section 46, subdivision 3, satisfied when defendant said of plaintiff, a master mariner, that he was in the habit of getting drunk. While we, of course, agree with the Supreme Court that the occupation of a master mariner ‘ ‘ peculiar^ requires a man who is not in the habit of getting drunk,” it is obvious that there are many other callings in which sobriety is not only desirable but necessary.^[12]

Imputations of the lack of other qualities common to.several occupations have been found sufficient under section 46, subdivision 3. Imputations of a lack of honesty when made of a clerk (Butler v. Howes, 7 Cal. 87 ), a city councilman (Jarman v. Rea, 137 Cal. 339 [ 70 P. 216 ]) and a jeweler (Williams v. Seiglitz, 186 Cal. 767 [ 200 P. 635 ]), have met the test. Just why an imputation of dishonesty and lack of integrity should not be actionable on the part of a railroad commissioner, is hard to say, but that was the holding in Rea v. Wood, 105 Cal. 314 [ 38 P. 899 ].^[13] That case must be deemed impliedly overruled by the later decisions cited.

To the member of the audience who testified, the words used by appellant meant that he was an aggrieved customer

and that i£ one bought a car from respondent one might expect unfavorable treatment—in other words that he lacked the qualities of fair dealing with the public which his occupation demanded. We have no hesitation in saying that the occupation of selling new and used cars demands fair dealing on the part of the seller to an unusual degree. The relative helplessness of the buyer because of his lack of expert knowledge of the quality of the merchandise offered is a matter of common knowledge. The trial court therefore correctly informed the jury that under some circumstances appellant’s words might carry a defamatory meaning.

Appellant’s final contention is that by the instruction quoted in footnote 4 the court erroneously permitted the jury to determine whether the words “you son of a bitch” constitute slander per se. The validity of this argument depends entirely on the correctness of our discussion concerning appellant’s second point. If the words spoken cannot possibly acquire a defamatory meaning viewed against the background in which they were spoken, the court should have ruled so as a matter of law, and appellant was entitled to a dismissal of the action. But since appellant’s language was reasonably susceptible of a defamatory interpretation, the entire point falls. Appellant is correct, of course, in arguing that the question whether or not a defamatory interpretation is reasonable is for the court. (MacLeod v. Tribune Publishing Co., supra, at p. 546). That ruling was made by the court in the instant case when it instructed the jury as follows: ‘ ‘ Calling someone a Son of a Bitch does not of itself impute such disqualification but under some circumstances it might have such effect.” Then the court went on to tell the jury in terms which were actually more favorable to appellant than necessary^[14] jhat if they found his words were understood in their