Hanley v. Lund

• Decision Date: 25 July 1963
• Citation: 218 Cal.App.2d 633,32 Cal.Rptr. 733
• Parties: William James HANLEY, Plaintiff and Respondent, v. Robert H. LUND, Defendant and Appellant. Civ. 26628.
• Court: California Court of Appeals Court of Appeals

Page 733

32 Cal.Rptr. 733

218 Cal.App.2d 633

William James HANLEY, Plaintiff and Respondent, v. Robert H. LUND, Defendant and Appellant.

Civ. 26628.

District Court of Appeal, Second District, Division 4, California.

July 25, 1963.

Rehearing Denied Aug. 22, 1963.

Hearing Denied Sept. 18, 1963.

John R. Brunner, Long Beach, for defendant and appellant.

Wise, Kilpatrick & Clayton and Robert J. Kilpatrick, Long Beach, for plaintiff and respondent.

KINGSLEY, Justice.

Defendant Robert H. Lund, an attorney, appeals from a judgment entered on a verdict in plaintiff's favor in the latter's action for slander.

Plaintiff is a medical doctor who specializes in pediatrics. He is actively engaged in practice in Bellflower, California, and draws his patients almost entirely from Bellflower and the surrounding communities. Until June of 1956 plaintiff was the personal physician of Gale Osborn, Jr., a minor. In June 1956 plaintiff suggested to the minor's parents that the child be hospitalized at the City of Hope. The child was then referred by the City of Hope to the Children's Hospital. The child died in December 1957. After the death of the child, the parents retained defendant as their attorney, and defendant filed suit against plaintiff, among others. The suit charged that the defendants therein had negligently diagnosed and treated the child, which negligence resulted in its death. It is not now contended that plaintiff was guilty of the alleged negligence nor that the defamatory statements made about him and set forth in footnote 1 were true.

Don Maddock, a reporter for Twin Coast Newspapers, became curious when the negligence action was filed, and telephoned the law offices of defendant for further information pertaining to the malpractice suit filed against plaintiff. Such information was given to Maddock. On April 17, 1959, an article, authored by Maddock, was published in the Long Beach Press-Telegram, a newspaper circulated in Bellflower and surrounding communities. ¹ The first two paragraphs of the article were merely a repetition of the allegations of the malpractice complaint. However, the statements in the third and fourth paragraphs of the article were not taken from the malpractice complaint, and it is alleged that the sting of the libel and slander lies in the impact those statements, including their implications, gave to the article. ²

On or about April 21, 1958, plaintiff caused to be served upon Twin Coast Newspapers, Inc., his demand for correction pursuant to section 48a of the Civil Code, setting forth respects in which the newspaper item was claimed to be libelous. At this time, George Johnson, attorney for Twin Coast Newspapers, Inc., inquired of defendant whether the facts as set forth in the article were true. The defendant assured Johnson that they were. Defendant later repeated this assurance in correspondence with Johnson.

On April 10, 1959, plaintiff filed a libel and slander action against defendant and Twin Coast Newspapers. After trial, the jury returned a verdict in favor of plaintiff for $15,000 general damages ³ and $5,000 punitive damages. From judgment entered on this verdict, defendant appeals.

I

Defendant, relying on Code of Civil Procedure section 581a, asserts that the trial court lacked jurisdiction to hear the case because summons was not issued until more than one year after the complaint was filed and therefore that this action must be dismissed. The point is not properly before us. A motion to dismiss on this ground was denied by the trial court. Defendant then made application to this court for a writ of mandate to require the superior court to dismiss the action. Division Two of this court denied the petition and sent counsel for the parties a memorandum of its reasons for such denial, which indicates the matter was decided on the merits. Defendant then petitioned the Supreme Court for a hearing, and his petition was denied. This being so, it is now the law of the case. ⁴ (Pigeon Point Ranch, Inc v. Perot (1963), 59 Cal.2d 227, 28 Cal.Rptr. 865, 379 P.2d 321.) Appellant argues that we are not entitled to take judicial notice of the memorandum. However, disregarding the memorandum the same result follows. Here, as in the Pigeon Point case, the only possible basis for action on the petition for mandate was on its merits.

II

At the time of trial, the court granted plaintiff's motion to file a written amendment to his complaint. Defendant alleges this to be error in that, he contends, for the first time, an entirely new and distinct wrongful act was allowed to be pleaded. However, the amendment did not allege a new tort, but merely added additional facts from which malice, as alleged in the original complaint, might be inferred. ⁵

California Code of Civil Procedure section 473 expressly authorizes the trial court, in its 'discretion,' to allow amendments 'in futherance of justice.' The policy of great liberality in permitting amendments at any stage of the proceeding was declared at an early date and has been repeatedly restated. (Witkin, 2 California Procedure, § 594, p. 1605, and cases cited therein.) We find no error in allowing the amendment.

III

On numerous occasions during the course of trial, testimony was admitted into evidence as to the co-defendant Twin Coast Newspapers, Inc., only, and not as to defendant. On the tenth day of trial, plaintiff entered into a settlement with the newspaper, and dismissed the action as to it. Defendant then moved to have stricken the testimony of Lillian King, William Turner, George Johnson, and Don Maddock. This motion was denied. The defendant claims this was prejudicial error. We do not agree. The testimony of King and Turner was relevant on the issue of damages sustained by the plaintiff. Maddock's and Johnson's testimony was concerned with the issue of whether or not the statements to the reporter resulted in publication of the newspaper article as it finally was printed and with defendant's reaffirmation of the false statements. This, too, was relevant to the issue of damages sustained by plaintiff and to the issue of malice. Furthermore, the trial court invited defendant to specify any portions of the above testimony which were inadmissible hearsay as to defendant. This defendant failed to do. He can not now be heard to complain. (In re Estate of Sproston (1935), 4 Cal.2d 717, 723, 52 P.2d 924; People v. Moore (1947), 81 Cal.App.2d 799, 185 P.2d 32; Mercantile Trust Co. v. Sunset, etc., Co. (1917), 176 Cal. 461, 168 P. 1037.)

Defendant also claims that certain of plaintiff's exhibits, which originally were admitted only against Twin Coast Newspapers, Inc., should have been stricken from the record after plaintiff's settlement with the newspaper. Defendant can not now urge this point. He waived any objection as to the admissibility of these exhibits by himself offering them into evidence at the conclusion of the trial. ⁶ Defendant urges that this discussion related only to certain exhibits offered in connection with the last witness to testify, and points to later language in which the trial judge ordered that exhibits having a number for identification only be given those same numbers as exhibits. We cannot read the discussion as referring to anything less than the total of unadmitted exhibits. The order as to numbering is without significance; since the exhibits herein in question already had numbers, an order as to numbers was necessary only as to exhibits not already admitted for any purpose.

IV

Defendant also alleges prejudicial error in the order, meaning, content and accuracy of certain jury instructions.

First, defendant contends that, although the court properly instructed the jury as to the liability of a principal to respond in general damages for the authorized acts of his agents, it was error to have an instruction on a principal's liability for punitive damages separated from this instruction by some twenty instructions on various unrelated topics.

We do not regard this as error. It is well settled that instructions must be considered as a whole and in connection with each other. One instruction is not to be segregated from the group for the purpose of microscopically critical appraisal. (Shehtanian v. Kenny (1958), 156 Cal.App.2d 576, 319 P.2d 699.)

Second, defendant complains that the court prejudiced him in allowing an instruction on the demand for correction, which instruction pertained only to the newspaper, and had lost any value it may have possessed when the former defendant departed the lawsuit and the libel action was dismissed.

We do not see how this instruction in any way prejudiced defendant. The court had already explained to the jury, when the libel action was settled, the distinction between the causes of action and admonished them that thereafter they were concerned only with the slander action. The instruction on the demand for correction, although unnecessary, could not have misled or prejudiced defendant in any way.

Third, defendant claims that the court erred in giving instructions on both express malice or malice in fact and on implied malice. For this position defendant relies on the case of Nova v. Flaherty (1956), 145 Cal.App.2d 761, 303 P.2d 382. However, that case involved a libel by a newspaper, an action which is governed by the special rules set forth in section 48a of the Civil Code. The present action is governed by Childers v. San Jose Mercury Printing & Publishing Co. (1894), 105 Cal. 284, 38 P. 903; Clark v. McClurg (1932), 215 Cal. 279, 9 P.2d 505, 81 A.L.R. 908; and Davis v. Hearst (1911), 160 Cal. 143, 116 P. 530. We find no error in the instruction as given.

Fourth, defendant complains that the instruction that, if the jury find for the plaintiff, they must deduct the $1,500 settlement with the newspaper, implied that, in the event of a plaintiff's verdict, that verdict must necessarily exceed the sum of $1,500, and such was implied coercion to...