Cunningham v. Simpson

• Decision Date: 26 November 1969
• Citation: 81 Cal.Rptr. 855,1 Cal.3d 301,461 P.2d 39
• Court: California Supreme Court
• Parties: , 461 P.2d 39 Donald W. CUNNINGHAM, Plaintiff and Respondent, v. Russell SIMPSON et al., Defendants and Appellants. L.A. 29652.

Page 855

81 Cal.Rptr. 855

1 Cal.3d 301, 461 P.2d 39

Donald W. CUNNINGHAM, Plaintiff and Respondent, v. Russell SIMPSON et al., Defendants and Appellants.

L.A. 29652.

Supreme Court of California In Bank.

Nov. 26, 1969.

Rehearing Denied Dec. 23, 1969.

Walker & Walker and Charles Z. Walker, Jr., Long Beach, for defendants and appellants.

James A. Gordon, Jr., Los Angeles, for plaintiff and respondent.

TOBRINER, Justice.

Defendants Russell Simpson and Farmers and Merchants Bank of Long Beach appeal from a judgment, entered pursuant to a jury verdict, awarding plaintiff $25,000 for damages resulting from a slanderous statement. We have concluded that although the evidence sufficiently supports the jury finding of liability, the amount of awarded damages, in light of the competent evidence, is excessive.

Plaintiff, a former car dealer in Long Beach, bought a 1958 Thunderbird automobile from Virgil Slater in Wichita, Kansas, and agreed to pay the purchase price of $1,950 by draft drawn by Slater through defendant Farmers and Merchants Bank of Long Beach. Plaintiff, in possession of documents showing him to be the car's purchaser, drove the automobile to Long Beach while Slater forwarded the transfer docuuments, including a certificate of legal title, and the bank draft to the main branch of defendant bank located at 3d and Pine Streets in Long Beach. In Long Beach plaintiff advertised the car for sale; Lew Mahieu answered the advertisement and agreed to purchase the automobile for $2,250. Plaintiff thus was to reap a $300 profit from the transaction.

In order to arrange financing for the sale plaintiff and Mahieu went to a branch of the Farmers and Merchants Bank located at 14th and Long Beach Boulevard, where they contacted defendant Simpson, the loan officer for that branch. At trial both plaintiff and Mahieu testified that they had previously known Simpson; plaintiff further testified, however, that at the meeting Simpson 'acted like he didn't know me, for some strange reason' and Mahieu introduced the two. The three men discussed the price of the automobile and Simpson examined the vehicle.

Simpson thereafter asked plaintiff as to the location of the title papers for the car; plaintiff explained that they were at the bank's main branch. Simpson allegedly responded by turning to Mahieu and saying: 'I told you so.' Plaintiff, not understanding the meaning of that remark, attempted to clarify his prior explanation, disclosing the Wichita purchase transaction. Plaintiff asked Simpson to instruct the main office to transfer the draft to Simpson's branch and offered to pay the $5 service charge for the transfer. Simpson called the main branch and learned that plaintiff's title was in order, but apparently continued to refuse to make arrangements to finance the car until plaintiff actually brought the draft to his branch. There was no explanation at trial for this insistence. ¹

By this time Mahieu was becoming upset because the arrangements were taking so long. It was at this juncture, according to plaintiff, that Simpson uttered the slanderous statement. Simpson allegedly declared: 'Well, it's obvious to me you've got a hot title or you'd bring it down here.' Plaintiff testified: 'I was shocked. I turned to Mahieu. Mahieu looked at me; I looked at him * * *. (W)e got off to the side and I said, 'Listen, Mr. Mahieu, I am sorry about this.''

On direct examination defendant Simpson concurred with plaintiff's general chronology of the meeting but emphatically denied making any remark concerning a 'hot title.' On cross-examination, the following colloquy occurred: 'Mr. Simpson, when Mr. Cunningham returned the morning of the next day, which would be approximately May 2nd of 1961, you asked him did he have the title, right? And when he said no, was that the time you said, 'It's obvious that you have a hot title or you would bring it down here? " Simpson answered: 'That is not the time.' Plaintiff's attorney continued: 'That's not the time you said that?' Simpson responded: 'Whoops, whoops, whoops. I did not say that.'

At trial Mahieu also substantiated the general description of the meeting set out above, but he testified that he did not 'believe' that he heard the phrase 'hot title' used during the conversation. On crossexamination, Mahieu admitted that he was currently financing a car through the defendant bank.

Plaintiff testified that after the meeting in question he was unable to obtain money to pay off the draft, the transaction with Mahieu fell through, and he finally was compelled to sell the car to a dealer for $1,950, his original purchase price. No problem concerning title ever arose. Plaintiff also testified that as a result of his problems with defendant bank, his supplier, Slater refused to enter into any further business transactions with him, and friends who had promised to advance him $40,000 to begin his own business had withdrawn their commitments.

The jury returned a verdict for the plaintiff in the amount of $25,000, and defendants moved for judgment notwithstanding the verdict and for a new trial. The trial court denied the motions and entered judgment on the verdict. This appeal followed.

Defendants present three arguments on this appeal: (1) Plaintiff failed to prove the facts necessary to constitute a cause of action for slander; (2) the utterance of Simpson, if rendered, was privileged; and (3) the trial court abused its discretion in declining to find the damages excessive.

In considering defendants' first argument that the evidence did not as a matter of law sufficiently support the jury verdict, we note, of course, that '(i)n reviewing evidence on appeal, an appellate court will not disturb a verdict if the evidence which supports it is in conflict. The presumption is in favor of the judgment, and the appellate court must consider the evidence in the light most favorable to the prevailing party. All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged in to uphold the verdict.' (Boyle v. Hawkins (1969) 71 A.C. 243, 250, 78 Cal.Rptr. 161, 165; 3 Witkin, Cal.Procedure (1954) Appeal, § 84 et seq., pp. 2245--2257, and cases cited.)

Plaintiff testified that defendant Simpson stated, in the presence of a third person, Mahieu, that: '(I)t's obvious to me you've got a hot title or you'd bring it down here.' This accusation that plaintiff possessed a 'hot title' could reasonably be understood to imply that the plaintiff had acquired the car by some illegal means ² and as such would constitute a slander as defined by section 46 of the Civil Code. ³ To be actionable, however, such statements must be published, and defendants suggest that the evidence does not sufficiently support a finding of publication.

The courts have generally held that utterance of a slanderous statement to a single third person constitutes publication (Harris v. Zanone (1892) 93 Cal. 59, 69, 28 P. 845); in the instant case plaintiff testified that when Simpson accused plaintiff of having a 'hot title' Mahieu was present at, and participating in, the conversation. ⁴ Plaintiff also testified that Mahieu reacted to the statement in a manner that would suggest that he had heard and understood the accusation. He recalled: 'I turned to Mahieu. Mahieu looked at me; I looked at him * * *. (W)e got off to the side and I said, 'Listen, Mr, Mahieu, I am sorry about this. '' Although Simpson denied making the statement, and Mahieu testified that he did not recall the use of those words, the jury had a full opportunity to examine the demeanor of all the witnesses to determine who was telling the truth. (Evid.Code, § 780.) Simpson's testimony was certainly self-serving; Mahieu's continuing business relations with the defendant bank also cast some doubt on his reliability. Although the evidence of publication in this case is concededly not very strong, it was sufficient for submission to the jury. We can find no precedent for defendant's contention that a slandered individual's testimony of publication is insufficient, as a matter of law, without corroboration. (Cf. Tocker v. Great A & P Tea Co. (D.C.App.1963) 190 A.2d 822, 824.) The slander heard by one person is no less a slander than that heard by a multitude.

Defendants' second contention, that Simpson's statement, if made, enjoyed the privilege provided by section 47, subdivision 3, of the Civil Code, ⁵ fails in the face of the jury determination of malice. The undisputed evidence reveals that Simpson served as the loan agent of the defendant bank, a bank which had been requested by plaintiff and his customer to arrange the financing on an automobile sale. Under these circumstances, defendants, as well as Mahieu, were, indeed, persons 'interested' in the state of the title of the automobile, within the meaning of section 47, subdivision 3(1). (Cf. McMann v. Wadler (1961) 189 Cal.App.2d 124, 129, 11 Cal.Rptr. 37) ⁶ Section 47 provides only a conditional privilege for defendants, however, and in this case the court properly instructed that the privilege would be defeated if the jury found that defendant's utterance of the statement had been actuated by malice.

Defendants insist that no evidence introduced at trial could support a jury determination of malice. Plaintiff's version of the conversation in question, however, if believed by the jury, provides adequate grounds to show that Simpson may have been motivated by a 'wish to vex, annoy or injure' the plaintiff. ⁷ Plaintiff testified that although he and Simpson had been acquainted for 9 or 10 years, on the day of the alleged slander Simpson pretended not to know him. Then, during the meeting, Simpson addressed various asides to Mahieu ('I told you so') indicating that Simpson had previously talked about plaintiff with Mahieu and implying that Simpson had earlier expressed a negative opinion of plaintiff. Moreover, Simpson admitted that after he had...