Correia v. Santos

• Decision Date: 08 May 1961
• Citation: 191 Cal.App.2d 844,13 Cal.Rptr. 132
• Court: California Court of Appeals Court of Appeals
• Parties: Joaquin J. CORREIA, Plaintiff and Appellant, v. Joaquin Enos SANTOS et al., Defendants and Respondents. Civ. 6509.

Page 132

13 Cal.Rptr. 132

191 Cal.App.2d 844

Joaquin J. CORREIA, Plaintiff and Appellant, v. Joaquin Enos SANTOS et al., Defendants and Respondents.

Civ. 6509.

District Court of Appeal, Fourth District, California.

May 8, 1961.

Rehearing Denied May 29, 1961.

Hearing Denied July 5, 1961.

Fredricks & Sullivan and Warren Sullivan, San Francisco, for appellant.

Louis L. LaRose, Visalia, Berryhill & Kuney and John R. Berryhill, Tulare, for respondents.

COUGHLIN, Justice.

This is an appeal from a judgment of dismissal after failure to amend upon entry of an order sustaining the defendants' demurrers to the plaintiff's fourth amended complaint in an action for slander.

The primary issue on appeal is whether certain allegedly slanderous words are actionable per se.

On June 1, 1958 the plaintiff Correia, who is the appellant herein, and the defendant Santos, who is one of the respondents herein, were rival broadcasters over competing radio stations. At this time the plaintiff also was president of a nonprofit corporation known as the 'T.D.E.S. Association of Tulare County, California.' On the aforesaid date, the defendant Santos conducted a radio broadcast over Station KCOK, wherein the plaintiff Correia was referred to as 'Mr. President' and in which Santos stated in substance, ¹ that he did not broadcast an announcement concerning an activity of the Tulare 'T.D.E.S. Association' because he was not authorized to do so and that the decision of the committee in this regard was taken to 'obey the orders and false statements' of the president of that lodge who is acting out of 'rancorous hatred and to take revenge'. As a part of this broadcast the defendant inferred that the plaintiff was an unscrupulous person who, in order to gain support from those who did not know him, made 'fantastic promises with lies and hypocracies'; stated that the plaintiff was one of those persons whose 'vanity of power' drives them to 'insanity'; that 'vanity and snobbism' had changed his character; that at first he appeared to be an excellent person but changed when he became an officer; likened the plaintiff to those who are parasites, who do nothing, who become 'insane in command', and whose authority drives them to 'insanity'; stated that these things caused the plaintiff to be irresponsible in his actions; that such people are 'unable to assume responsibility'; that the proverb "If you want to know who the villain is, give him the stick of power' is very true;' and that the blame for 'these acts of shame' is upon the people who nominated such a person to executive positions.

In his fourth amended complaint, the plaintiff attempts to allege three causes of action. All of them are against the respondent Santos, the respondent corporation KCOK, which operates the radio station over which the objectionable broadcast was made, and the respondent Munger, who is an officer and manager of that corporation. The first cause of action alleges that the broadcast was slanderous; that the plaintiff was engaged in the occupation and profession of radio announcer and commentator; and that he was damaged in the sum of $100,000. The second cause of action was similar to the first except that it omitted the allegation respecting the plaintiff's occupation and in lieu thereof alleged that he was president of the 'T.D.E.S. Association of Tulare County, California, a nonprofit corporation.' Each of these causes of action contained other appropriate allegations essential to the statement of a cause of action for slander, including those respecting malice, as to agency, and a demand for correction, but did not contain any allegation of special damage. It is apparent that the pleader thereof is relying upon a contention that the spoken words were slanderous per se. The third cause of action purports to be based on negligence; incorporates all of the allegations in the first two causes of action; and adds allegations respecting a failure to exercise reasonable care to control the type of broadcast made over the radio station in question.

General and special demurrers to each cause of action in this fourth amended complaint were filed by the defendants; the trial court sustained the general demurrers thereto on the ground that the broadcast was not slanderous per se and gave the plaintiff leave to amend; the plaintiff referred to stand upon his complaint and did not amend; and the judgment of dismissal followed.

False and unprivileged communications by radio which tend directly to injure a person 'in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits', give rise to a cause of action for slander per se. Civ.Code, sec. 46.

The term 'per se' when used in describing the effect of allegedly slanderous words means that the utterance of such words is actionable without proof of special damage. Tonini v. Cevasco, 114 Cal. 266, 270, 46 P. 103; Rosenberg v. J. C. Penney Co., 30 Cal.App.2d 609, 619, 89 P.2d 696; Jimeno v. Commonwealth Home Builders, 47 Cal.App. 660, 663, 191 P. 64. When the alleged slander occurs through a radio broadcast and the words are actionable per se it is assumed that the subject of the slander was damaged by the making of the broadcast. The plaintiff does not contend that the first and second causes of action in his fourth amended complaint contain any allegations of special damages. Therefore, the issue presented by this appeal with respect to these causes of action is whether the broadcast was slanderous within the provisions of the law heretofore set forth.

Preliminarily it is appropriate to refer to certain applicable general principles. In determining whether or not a radio communication is slanderous, the subject broadcast must be considered in its entirety (MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 546-547, 343 P.2d 36; Bates v. Campbell, 213 Cal. 438, 441-442, 2 P.2d 383; Stevens v. Storke, 191 Cal. 329 334, 216 P. 371; Rosenberg v. J. C. Penney Co., supra, 30 Cal.App.2d 609, 619; Jimeno v. Commonwealth Home Builders, supra, 47 Cal.App. 660, 663, 191 P. 64); 'may not be divided into segments and each portion treated as a separate unit' (Stevens v. Storke, supra, 191 Cal. 329, 334, 216 P. 371, 373; MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d 536, 546, 343 P.2d 36; Bates v. Campbell, supra, 213 Cal. 438, 441, 2 P.2d 383); 'is to be measured, not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average' listener (Bates v. Campbell, supra, 213 Cal. 438, 442, 2 P.2d 383, 385; Semple v. Andrews, 27 Cal.App.2d 228, 233, 81 P.2d 203); should not involve a 'hair-splitting analysis of language' (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d 536, 550, 343 P.2d 36, 44); must be construed not only from the expressions used but "from the whole scope and apparent object" of the person making the statement (Stevens v. Storke, supra, 191 Cal. 329, 334, 216 P. 371, 373); and 'not only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning, under all the circumstances attending the publication, which such language may fairly be presumed to have conveyed to those to whom it was published.' Bettner v. Holt, 70 Cal. 270, 274, 11 P. 713, 715; Bates v. Campbell, supra, 213 Cal. 438, 442, 2 P.2d 383; Semple v. Andrews, supra, 27 Cal.App.2d 228, 232, 81 P.2d 203.

The effect of the distinction between libel and slander, i. e., written and oral defamation, is observed primarily in determinations as to whether particular language is actionable per se or requires the pleading of special damages; and it has been noted that 'many charges which if merely spoken of another would not be actionable without proof of special damages, will be libelous per se when written or printed and published.' Jimeno v. Home Builders, supra, 47 Cal.App. 660, 663, 191 P. 64, 65; Tonini v. Cevasco, supra, 114 Cal. 266, 271, 46 P. 103. Nevertheless, decisions in libel cases are of assistance when considering the defamatory effect of allegedly slanderous language.

In the area under consideration, to be actionable per se, a defamatory statement must tend 'directly' to injure the person defamed in respect to his office, profession, trade or business, in either of two ways, i. e., 'by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires', or 'by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits.' Civ.Code, sec. 46, subd. 3 (Emphasis added.)

There is nothing in the radio broadcast under consideration which 'tends directly' (Civ.Code, sec. 46, subd. 3) to injure the plaintiff in his occupation as a radio announcer and commentator, nor is there anything therein which imputes to him general disqualification in those respects which such an occupation peculiarly requires. The plaintiff contends that the language used accused him of making false statements and of being a liar that a reputation for truth and honesty is a peculiar requirement of his occupation; and that the defamatory statements imputed to him a general disqualification in this regard. Considering the alleged defamatory broadcast as a whole it is obvious that the broadcaster was commenting on the characteristics of the plaintiff as president of the 'T.D.E.S. Association'; the scope and object of the defendant's remarks clearly were confined to this area; there is no reference to the plaintiff's radio occupation; nothing was said about the falsity of any broadcasts made by him; nor did the objectionable statements refer to his...