Morris v. National Federation of the Blind

• Citation: 192 Cal.App.2d 162,13 Cal.Rptr. 336
• Court: California Court of Appeals
• Decision Date: 16 May 1961
• Parties: Albert A. MORRIS, Plaintiff and Appellant, v. NATIONAL FEDERATION OF THE BLIND, a corp., Braille Monitor, Defendants and Respondents. Civ. 19407.

Page 336

13 Cal.Rptr. 336

192 Cal.App.2d 162

Albert A. MORRIS, Plaintiff and Appellant, v. NATIONAL FEDERATION OF THE BLIND, a corp., Braille Monitor, Defendants and Respondents.

Civ. 19407.

District Court of Appeal, First District, Division 2, California.

May 16, 1961.

Albert E. Polonsky, San Francisco, for appellant.

Koford, McLeod & Koford, Oakland, for respondents.

DRAPER, Acting Presiding Justice.

Demurrer to first amended complaint for libel was sustained with leave to amend. Plaintiff failed to amend within the time allowed. Judgment of dismissal followed, and plaintiff appeals.

The publication complained of appeared in 'Braille Monitor,' alleged to be a 'national * * * magazine of general circulation' published by defendant National Federation of the Blind. The article was captioned 'Nevada Blind Defeat Racketeer.' It recited the revocation by the city council of Reno of plaintiff's 'license.' It referred to plaintiff 'and his salesmen' and said in part: 'The effort to stop Albert A. Morris from misrepresenting to the public through high-pressure, sympathy measures his blind and handicapped made products, was extremely slow in accomplishment.' Plaintiff alleged that he had long been an authorized distributor of products made by California Industries for the Blind, and 'had an excellent reputation in this profession'; that the article was false; and that he had suffered general damages by reason of the publication.

'Defamatory language not libelous on its face' is not actionable in the absence of an allegation of special damages (Civ.Code § 45a). Concededly, the complaint contains no allegation of special damage as defined by code (Civ.Code § 48a, subd. 4(b)). Thus the demurrer was properly sustained if the article is not libelous on its face. We cannot, however, accept respondent's contention upon this question.

It is extremely difficult to place an innocent meaning upon the word 'racketeer' as here used. By dictionary definition, the word imports extortion or other unlawful practice. But even if the word left room for a possible innocent meaning, the pleading would adequately allege libel per se (MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 550-551, 343 P.2d 36, overruling decisions supporting the 'possible-innocent-meaning' rule). It is apparent that at least some readers of the article will take it in its defamatory sense. Nor does a careful reading of the article as a whole sustain respondent's argument that, in its full context, the word 'racketeer' is not defamatory. Only the sufficiency of the pleading is before us, and for purposes of this demurrer respondent admits the allegation that the word 'racketeer' was intended by respondent and understood by readers of the magazine to connote connection 'with the criminal underworld' (see MacLeod v. Tribune Publishing Co., supra).

It follows that the ground relied upon by the court in sustaining the demurrer was unsound. However, since two other grounds of demurrer were asserted, they too must be considered here (Southall v. Security Title Ins. etc. Co., 112 Cal.App.2d 321, 323, 246 P.2d 74).

One of these grounds is that the defense of privilege appears on the face of the complaint. In general, such a privilege applies, but only in the absence of allegations of malice, to a communication from one interested person to another (Civ.Code, § 47(3)). Normally, privilege is an affirmative defense which must be pleaded in the answer (Stevens v. Snow, 191 Cal. 58, 64, 214 P. 968). However, if the complaint discloses existence of a qualified privilege, it must allege malice to state a cause of action (Locke v. Mitchell, 7 Cal.2d 599, 602, 61 P.2d 922). Malice is not alleged here. Thus the complaint fails if it alleges facts showing a qualified privilege. But it does not do so. Nowhere is it alleged that the magazine is wholly or principally for the blind or those interested in assisting them. The mere title of the magazine does not fill this void, nor is there any basis for judicial notice that the publication is designed only for some limited group. Far from showing a communication to parties whose interest warrants the disclosure, this complaint in fact alleges that the magazine in which this article was published is a 'national * * * magazine of general circulation.' Thus it negates a communioation designed only for a group of interested persons.

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