Biggins v. Hanson

• Decision Date: 23 June 1967
• Citation: 252 Cal.App.2d 16,59 Cal.Rptr. 897
• Court: California Court of Appeals Court of Appeals
• Parties: Wilbur BIGGINS, Plaintiff, Appellant and Cross-Respondent, v. Everett L. HANSON, General Film Laboratories Corporation, a California corporation et al., Defendants, Respondents and Cross-Appellants. Civ. 29751.

Page 897

59 Cal.Rptr. 897

252 Cal.App.2d 16

Wilbur BIGGINS, Plaintiff, Appellant and Cross-Respondent, v. Everett L. HANSON, General Film Laboratories Corporation, a California corporation et al., Defendants, Respondents and Cross-Appellants.

Civ. 29751.

Court of Appeal, Second District, Division 5, California.

June 23, 1967.

Leonard L. Freedman, Panorama City, for appellant and cross-respondent.

Youngman, Hungate & Leopold, Richard Hungate and David E. Lindgren, Los Angeles, for cross-appellants.

Youngman, Hungate & Leopold, Los Angeles, for respondents.

KAUS, Presiding Justice.

Plaintiff sued defendant General Film Laboratories Corporation (General), his former employer, for libel. The libel was uttered by Everett L. Hanson, plaintiff's immediate superior at General. Hanson was also named as a defendant. A jury trial resulted in a verdict against both defendants for $15,000 compensatory damages. The jury awarded punitive damages as follows: $2,500 against General and $500 against Hanson.

In due course a motion for a new trial was granted, but a motion for a judgment notwithstanding the verdict was denied. Plaintiff then appealed from the order granting the new trial; defendants cross-appealed. (Code Civ. Proc. § 629; Cal. Rules of Court, rule 3(a).)

The rules which govern appellate review of orders granting new trials and denying judgments notwithstanding the verdict are so well known that they need not be set forth.

The evidence in support of the trial court's order granting a new trial was as follows: Defendant Hanson, a foreman with defendant General, had personally brought plaintiff to the company in 1656. In the four years that followed he had done him several favors, such as promoting him to subforeman over the head of another employee and getting him sick pay to which he was not entitled. There were no problems between Hanson and plaintiff until plaintiff was assigned to the night shift a few months before his dismissal. Trouble developed thereafter. There was friction concerning Hanson's desire that plaintiff leave him notes showing work accomplished during the night shift and plaintiff's alleged failure to maintain certain logs properly. According to Hanson plaintiff was unavailable at times when he tried to get in touch with him during the night shift. A fellow employee testified that plaintiff frequently left the plant during that shift saying he was going to get a drink. Plaintiff reported to work with alcohol on his breath from time to time and there is some evidence that he introduced liquor into the plant.

The Memorial Day weekend in 1960 was a three day weekend. Early that year it had been planned to overhaul certain machinery during that weekend and the Fourth of July weekend which followed. Plaintiff ways aware of these plans and worked over the Memorial Day weekend. Later there was a problem concerning his receiving triple pay for the overtime. Plaintiff then failed to notify his men that they were to report for work over the July 4 weekend and no work was done. His explanation for his failure can at best be described as 'cute'--it was his position at the trial that although he knew that the work had been planned, he was entitled to a reminder from Hanson which he did not get. Hanson testified that he did leave a reminder note for plaintiff on his tool box. Plaintiff denied receiving it.

During the month of July Hanson made up his mind to fire plaintiff. In the evening of July 15, a Friday, Sam DeLuca, the union shop steward, told Hanson that after plaintiff learned on the first payday following the Memorial Day weekend that he would not receive triple pay, plaintiff said concerning the machinery which had been worked on: 'Okay, I hope it don't work. If it does, I will fix the machines so it don't.' This statement by plaintiff will be referred to as the 'threat.'

When Hanson learned about the threat from DeLuca on Friday he thought that plaintiff would carry it out. Over the weekend he composed the inter-office memorandum which is the basis of the action and which reads as follows: 'Due to your disloyalty, insubordination and foremost, your threat to sabotage valuable laboratory equipment, your services are no longer required effective 4:00 A.M. Saturday, July 16, 1960.' This memorandum was left for plaintiff who received it when he reported for work on the evening of Monday, July 18. The memorandum indicated that it was to be distributed to six different individuals. It was accompanied by a note to plaintiff offering not to 'pass this communication to any one but yourself' if plaintiff resigned voluntarily.

The memorandum was subsequently published to General's personnel manager, to Hanson's superior and to Paul E. O'Bryant the business manager of plaintiff's union.

Plaintiff left the plant that night. The next morning he visited Paul E. O'Bryant at O'Bryant's office. He was angry and according to O'Bryant threatened to 'sue General, the union, me, everyone.'

During the ensuing conversation O'Bryant placed a telephone call to DeLuca who confirmed the story about the threat. Plaintiff then admitted to O'Bryant that he had made the threat but said: 'It was one of those temper tantrums.'

DeLuca personally testified that the threat had been made as reported to Hanson.

The above outline of defendant's case demonstrates that there is nothing we can do with the order granting a new trial. There is more than adequate evidence in the record to indicate the truth of Hanson's inter-office memorandum. The point on the appeal from the order granting a new trial is not, as plaintiff seems to think, whether there is sufficient evidence in support of the jury's verdict, but whether a verdict in favor of defendants would have been supported by substantial evidence. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 359, 170 P.2d 465.)

We now turn to defendants' appeal. Defendants admit, as they must, that there is much contrary evidence in the record. Without going into unnecessary detail, plaintiff denied--sometimes perhaps not too convincingly--the various charges of insubordination, disloyalty and, in particular, the 'threat.' Thus the validity of the defense of truth was strictly a jury question.

Defendants claim however that the libel was uttered on a conditionally privileged occasion. ¹ This contention is sound (Brewer v. Second Baptist Church, 32 Cal.2d 791, 796--798, 197 P.2d 713; Rest., Torts, §§ 593--595), but the argument that their motion for a judgment notwithstanding the verdict should have been granted depends entirely on the correctness of their further contention that there is no substantial evidence in the record that the privilege was abused.

The briefs of the parties seem to agree that the privilege is automatically abused if Hanson acted with 'an ill will going beyond that which the occasion apparently justifies * * *' (DeMott v. Amalgamated Meat Cutters, 157 Cal.App.2d 13, 27, 320 P.2d 50.) Whether this apparently unanimous opinion of the parties represents a correct view of the law is doubtful. If the occasion is conditionally privileged, if the defendant's primary motive is the advancement of the interest which the privilege protects and if he speaks in good faith, the mere fact that he harbors ill will toward the plaintiff should be a neutral factor. (Brewer v. Second Baptist Church, supra, 32 Cal.2d p. 797, 197 P.2d 713; Noonan v. Rousselot, 239 Cal.App.2d 447, 454, 48 Cal.Rptr. 817; Rest., Torts, § 603, com. a.) ²

That is not to say that ill will which goes 'beyond that which the occasion apparently justifies' is not of strong evidentiary value. Surely the factual determination whether the words complained of are spoken or written for the purpose of protecting the interest protected by the privilege is aided by the ascertainment of the defamer's feelings toward the person defamed. In any event, however, all authorities are agreed that if the defendant does not believe in the truth of his charges, ³ the conditional privilege is abused. (Rest., Torts, §§ 600--601.) Having this in mind, we find that there is some substantial evidence in the record indicating that on Monday, July 18 Hanson had heard nothing about the threat.

The recital of the evidence on that point is rather tedious and we feel bound to say that it probably would not have impressed any experienced trier of facts who knows what the passage of time can do to the recollection of a witness. The question, however, is not what we would find to have been the fact, but what a jury may reasonably find. The trial judge was obviously not impressed by any part of the plaintiff's case but as he wisely said when denying defendants' motion for a judgment notwithstanding the verdict: 'The only problem here is the question of the matter of judgment notwithstanding the verdict. I suppose that somebody could use a fine strainer and find something that would favor the position of the plaintiff here.'

Using our fine strainer the following appears:

We start with the proposition that the jury could find that the threat was never made, because the plaintiff so testified. ⁴ The only witness to the alleged threat was DeLuca. There is in evidence a memorandum which according to DeLuca was prepared by Hanson who presented it to DeLuca for signature. The memorandum reads as follows: 'With referance (sic) to Wilbur Biggins dismissel (sic)--The following statement was made by Wilbur Biggins, to Sam DeLuca, shortly after the completion of #4 dev. mach. overhaul. Quote 'I hope the machine won't work and if it does I'll do something so it won't.' Samuel C. De Luca, Staf (sic) steward.'

This memorandum is dated July 20, 1960. DeLuca testified...