Guillory v. Godfrey

• Decision Date: 28 July 1955
• Citation: 134 Cal.App.2d 628,286 P.2d 474
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy GUILLORY and Preston R. Guillory, Plaintiffs and Respondents, v. Mildred GODFREY, Froy J. Tristany, Froy J. Tristany, doing business under the fictitious firm name of Duke's Liquor Stores, Defendants and Appellants. Civ. 20725.

Page 474

286 P.2d 474

134 Cal.App.2d 628

Dorothy GUILLORY and Preston R. Guillory, Plaintiffs and Respondents, v. Mildred GODFREY, Froy J. Tristany, Froy J. Tristany, doing business under the fictitious firm name of Duke's Liquor Stores, Defendants and Appellants.

Civ. 20725.

District Court of Appeal, Second District, Division 3, California.

July 28, 1955.

Cletus J. Hanifin, El Monte, for appellants.

Lawrence J. Yanover, Los Angeles, for respondents.

ASHBURN, Justice pro tem.

In this action for recovery of damages for malicious interference with plaintiffs' restaurant business, a jury awarded plaintiffs Dorothy Guillory and Preston R. Guillory compensatory damages in the sum of $2,250 and punitive damages of $2,000. From the judgment entered on the verdict defendants Mildred Godfrey and Froy J. Tristany have taken this appeal. The action was dismissed as to defendant Edward Godfrey.

The complaint alleges that plaintiffs were owners and operators of a cafe located at 715 1/2 South Main Street in Los Angeles; that defendant Froy J. Tristany was doing business under the name of Duke's Liquor Stores; that defendant Mildred Godfrey was an agent and employee of Tristany and acted within the scope of her employment and under the directions of Tristany; that on and after March 17, 1952 'defendants and each of them', with intention to destroy plaintiffs' business, maliciously and wantonly intimidated their customers in that, whenever customers were about to enter the cafe, defendants would ask them if they were 'Nigger Lovers' and make other intimidating remarks; that Mildred Godfrey on March 24, 1952 entered the cafe and forcibly evicted a customer, causing a large crowd of people to collect; that the customers were actually intimidated; that this course of conduct started when plaintiffs employed a colored cook in the cafe; that as a proximate result of defendants' malicious acts business dropped off more than 50 per cent; that regular customers withdrew their patronage; that plaintiffs became nervous and upset, and plaintiff Dorothy became ill and required medical care, all to the damage of plaintiffs in the sum of $10,000; that plaintiffs lost money in the business and profits amounting to $1,000; that, by reason of the malicious and wanton acts of defendants, the plaintiffs demand exemplary damages of $20,000.

The evidence is to be viewed in the light most favorable to respondents, with every legitimate inference drawn in their favor. Murphy v. Ablow, 123 Cal.App.2d 853, 858, 268 P.2d 80. Thus arrayed it discloses the following situation. Plaintiffs owned and operated a cafe on Main Street in Los Angeles and defendant Tristany conducted a liquor store next door under the name Duke's Liquor Stores. Defendant Mildred Godfrey was Tristany's sister and active in the conduct of the store. On March 17, 1952 plaintiffs hired a Negro cook, William Murrell, who then started to work. From that day until plaintiffs closed the cafe, about April 28, 1952, defendants engaged in a course of conduct calculated and intended to imtimidate plaintiffs' customers and drive away their trade. As patrons would enter defendants would ask if they were 'Nigger Lovers', make disparaging remarks about the cafe and the food 'cooked by a nigger', perform antics in front of the place, make gestures, some of them obscene, yell at customers such things as 'Don't go in there. The place isn't fit to eat in. She has this nigger in there. Don't go in there.' Most of these things were done by the sister Mildred, but Froy himself stood on the sidewalk joining in the gestures, laughing at Mildred's antics, made disparaging remarks and fully supported his sister's activities. She called plaintiffs 'dirty Mexicans',--'don't go into the restaurant, can't you see this dirty Mexican people, can't you see that lady, the lady's hands, can't you see the lady don't- --go away from here.' on mArcH 24th mildRed had a fight in the cafe with a man called Frenchie, calling him names that one witness, Miss Moreno, would not repeat. According to Murrell: 'She came in, says, 'Get out of here, you nigger lover. You know I told you not to eat in here.' She drug him out by the ear, pulled him out, beat him up. He began to bleed at the mouth.' On another occasion Tristany told plaintiff in the presence of customers 'you have no business having that god-damn nigger working in here.' When Mrs. Guillory protested to Mildred Godfrey about her conduct she replied: 'I'm just not going to go for that,' and 'I'm not only going to let you operate, but I'm not even going to let you sell.' Tristany told Mr. Guillory 'I know my sister did wrong, but, * * * I'm for it 100 per cent. I feel exactly the way she does.' 'So he said, 'Whatever my sister done,' he said, 'I'm her brother and I'll back her a hundred per cent. You can go right now,' he says, 'load your gun,' he says, 'and fire, but make sure you don't miss.'' This was a continuous course of conduct. The business of the cafe dropped off to nothing and plaintiffs were unable to sell or to operate. The mental perturbation which this caused to plaintiff Dorothy Guillory aggravated an existing gall bladder trouble and brought on a complete nervous breakdown.

Appellants' brief does not comply with the rules in numerous respects but counsel has made his points sufficiently for us to be able to dispose of them. He argues first that no cause of action was alleged or proved. He quotes section 43, Civil Code as follows: 'Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.' Then argues that there was no false imprisonment, assault and battery, interference with right of privacy, defamation, or interference with contract between plaintiffs and Murrell. But counsel says nothing about the right of protection 'from personal insult' and, more important, ignores the real theory of the complaint and the proof, which is wrongful and malicious interference with plaintiffs' going business. It is said that 'wrongful or malicious interference with the formation of a contract or the right to pursue a lawful business, calling, trade, or occupation has been generally held to constitute a tort, * * *.' 86 C.J.S., Torts, § 43, page 956. This rule prevails in California. Finney v. Lockhart, 35 Cal.2d 161, 217 P.2d 19; Masoni v. Board of Trade of San Francisco, 119 Cal.App.2d 738, 741-742, 260 P.2d 205; Remillard-Dandini Co. v. Dandini, 46 Cal.App.2d 678, 680, 116 P.2d 641; California Grape Control Board v. California Produce Corp., 4 Cal.App.2d 242, 244, 40 P.2d 846; See, also, Restatement of Torts, § 766, p. 49; 62 C.J. § 53, p. 1137. The evidence amply supports a finding of malicious disruption of plaintiffs' business by defendants and damage proximately flowing therefrom.

Appellants' counsel also argues that no cause of action was stated or proved against defendant Tristany, first, because 'there is no allegation that this liquor store of Tristany has committed any act at all' (a unique and refreshing argument) and, secondly, that Mildred was alleged to have acted as Tristany's agent and no proof to that effect was made; that plaintiffs forsook the agency theory during the trial and sought (successfully) to hold Tristany as an actor. The complaint not only alleged such agency, but it also averred that defendants and each of them committed the wrongful acts. At best the shifting of ground by plaintiffs could amount to a variance, sections 469-470, Code of Civil Procedure. The evidence supports the implied...