Campbell v. Jewish Committee for Personal Service

• Decision Date: 07 June 1954
• Citation: 271 P.2d 185,125 Cal.App.2d 771
• Parties: CAMPBELL v. JEWISH COMMITTEE FOR PERSONAL SERVICE. Civ. 15782.
• Court: California Court of Appeals Court of Appeals

Page 185

271 P.2d 185

125 Cal.App.2d 771

CAMPBELL v. JEWISH COMMITTEE FOR PERSONAL SERVICE.

Civ. 15782.

District Court of Appeal, First District, Division 1, California.

June 7, 1954.

Hearing Denied Aug. 4, 1954.

James J. Campbell, Palm Springs, in pro. per.

Walter McGovern, San Francisco, for respondents.

PETERS, Presiding Justice.

The complaint in this action, labeled 'Complaint for Libel,' was filed April 23, 1952, names as plaintiff 'James J. Campbell, Guardian of Philip Cohen,' and is verified by Campbell, who appeared in the trial court and appears here in propria persona. The libel is alleged to have been uttered by defendant in December of 1945. It relates to Philip Cohen, the brother of Campbell, and prays for $25,000 damages. In spite of the caption, Campbell appears only on his own behalf and does not appear in any representative capacity. If affirmatively appears that Cohen is not incompetent, and that Campbell has not been appointed his guardian. Not being a lawyer, Campbell cannot appear as attorney for his brother.

Defendant, a charitable corporation, generally and specially demurred to the complaint. On June 23, 1952, the demurrer was sustained and plaintiff granted 15 days to amend. On the 15th day, July 8, 1952, plaintiff filed a document entitled 'Answer to Demurrer.' A reading of this document discloses that it appears to be a tardy argument made after the court had already sustained the demurrer. However, because of plaintiff's inexperience, insofar as it contains any allegations of fact, it will be considered as an attempt to amend the complaint. So interpreted, plaintiff was not in default in failing to amend.

On August 8, 1952, defendant moved for and the court granted judgment on the pleadings. Formal judgment in favor of defendant was entered October 1, 1952. Plaintiff, on August 13, 1952, however, appealed from the nonappealable order of August 8, 1952. The subsequent motion of defendant to dismiss the appeal was denied on the authority of Collins v. City and County of S.F., 112 Cal.App.2d 719, 247 P.2d 362. Under the rule announced in this decision the appeal has been treated as one from the subsequently entered judgment.

Inasmuch as we have held that plaintiff is not in default for failure to amend his complaint, the problem presented on this appeal is whether the complaint and its amendments state a cause of action. Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630; Morris v. Harbor Boat Building Co., 112 Cal.App.2d 882, 247 P.2d 589.

Plaintiff's two briefs, both very short, contain no legal arguments or citations to support his contention that the judgment should be reversed. An examination of the complaint and its amendments, however, demonstrates that such pleadings fail to state a cause of action against defendant, and are therefore fatally defective.

The complaint alleges that it was the 'duty of Defendant to render assistance to patients of State Hospitals'; that on December 10, 1945, the defendant wrote a letter to the superintendent of a designated state mental hospital in New York from which plaintiff's brother had been released, stating the following of plaintiff's brother: 'Why do you turn loose patients like him * * *. That the Defendant meant thereby that the Plaintiff's brother did not merit his freedom, and should be confined indefinitely, and said letter was so understood by the Medical Superintendent, and his Staff, who read it'; that the letter was 'false and defamatory'; that 'Plaintiff's brother hath sustained damage by reason of said false and defamatory letter, as a result of which the Medical Superintendent has steadfastly refused to again release Plaintiff's brother and restore his freedom, in the sum of Twenty Five Thousand ($25,000.00) Dollars.' Plaintiff prays for judgment in that amount.

Out of the 'Answer to Demurrer' can be spelled allegations that the claimed libel has resulted in the continued confinement of plaintiff's brother; that 'the real party in interest is Philip Cohen, as he is the one who has suffered damages as a result of defendant's libelous action'; that 'Philip Cohen never was or now is insane or incompetent excepting that he has suffered the deteriorating influence of years of unwarranted state hospital incarceration'; that 'Philip Cohen never was adjudged to be an incompetent person by any court'; that Campbell is the brother and closest interested living relative of Philip Cohen; that Campbell has suffered special damages because of the libel 'by being deprived of the company of his brother, Philip Cohen; by being denied the opportunity of guiding his brother, Philip Cohen, along the paths of health, character, and the pursuit of happiness.'

These pleadings, interpreted most liberally in favor of plaintiff, are fatally defective in several respects.

It is obvious that the real party in interest has not sued. Philip Cohen was the subject of the alleged defamatory letter, but it is James Campbell, his brother, who has brought the action. It is alleged that Philip Cohen is not incompetent and has not been adjudged insane. Campbell does not allege that he has been appointed guardian or has any authority to sue on behalf of Philip Cohen. Thus, the complaint discloses on its face that it is not brought by the real party in interest. For that reason the general demurrer was properly sustained.

In the second place, the complaint discloses on its face that it is barred by the statute of limitations, Code of Civil Procedure, § 340(3), properly raised by the demurrer. That section requires libel actions to be brought within one year. Here the libel is alleged to have been uttered on December 10, 1945. The complaint was not filed until April 23, 1952. Although the complaint as...