Harnish v. Smith

Decision Date05 January 1956
Citation291 P.2d 532,138 Cal.App.2d 307
CourtCalifornia Court of Appeals Court of Appeals
PartiesJerene Appleby HARNISH et al., Plaintiffs and Appellants, v. Oregon SMITH, Defendant and Respondent. Civ. 5243.

Wilson & Wilson, San Bernardino, for appellants.

Jack B. Tenney, Los Angeles, for respondent.

Oregon Smith, Ontario, in pro. per.

GRIFFIN, Justice.

Plaintiffs and appellants appeal from a judgment in favor of defendant and respondent in a slander action. Plaintiffs were the owners of 'The Daily Report', a newspaper published in Ontario. Defendant was a member of the City Council of said city. The complaint alleges that on July 20, 1953, 'at a regular meeting of the Mayor and City Council of said City, in the Council Room, in the City Hall, in said City, at which time there were present the Mayor and Members of the City Council of said City and members of the general public, the defendant, in a loud and angry voice and within the hearing of all persons present in said Council Room, falsely and maliciously said and stated of and concerning the plaintiffs: 'That the local paper instigated the controversy; that these men are just being used as pawns by this paper; that the paper without any question is following the Communist party line and has created more chaos and discord in what was once a happy city; that there is nothing wrong with the Fire Department except that the Daily Report wants to cause trouble'.' Then follows conclusions of the pleaders as to what these utterances meant, as to whom and to what they referred. They allege that said accusations were, and were known by defendant to be, false and untrue, and were wilfully made with malice, for the purpose of injuring plaintiffs. Claimed damages are alleged.

Defendant answered, denied generally these allegations, and as a separate defense alleged the statements described were true and that such statements were made by defendant in the proper discharge of his official duties as a public officer, to wit, a member of the City Council of the City of Ontario, and that the same therefore were and are absolutely privileged and not a subject of suit for alleged defamation, under the provisions of subdivision 1 of section 47 of the Civil Code, and in connection with an inquiry into the condition of affairs of the fire department and were relevant to the matter under discussion. The answer was thereafter amended to include the statement that since the filing of deendant's answer 'The Daily Report has followed the Communist Party line'.

A jury was sworn to try the cause, a witness was sworn on behalf of plaintiffs, and questions were propounded to him. Objection was made by defendant to the introduction of any testimony on the ground that the complaint did not state a cause of action. The trial court sustained the objection and counsel for plaintiffs then stated in open court that the complaint 'couldn't be improved by any amendment I know of'. Judgment was entered in favor of defendant and plaintiffs appealed.

It is plaintiffs' position, on this appeal, that the complaint does not set forth the nature of the controversy before the City Council or that plaintiffs had any interest therein except as members of the general public; that a solution of that controversy could not be affected by the statements of the defendant, regardless of whether they were true or false; that defendant contributed nothing to the solution or settlement of the controversy by his defamatory statements; that by the mere fact alone that defendant was a member of the City Council, he had no absolute privilege to make any statements he desired without regard to their relevancy to any matter under official consideration and he could not, with impunity, voice his opinions on any subject even though they were expressed at a meeting of the legislative body of which he was a member; that since this was pleaded as an affirmative defense the court was unauthorized to grant defendant's motion.

Section 47 of the Civil Code provides in part: 'A privileged publication * * * is one made--1. In the proper discharge of an official...

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7 cases
  • Jacobson v. Schwarzenegger, CIV.CV043629-JFW(MC).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 30 Noviembre 2004
    ...statement was privileged. See Whelan v. Wolford, 164 Cal.App.2d 689, 693, 331 P.2d 86, 88-89 (1958); Harnish v. Smith, 138 Cal.App.2d 307, 310, 291 P.2d 532, 534 (1956). Federal pleading rules generally do not require a plaintiff to anticipate and plead around an affirmative defense. See Go......
  • Kapellas v. Kofman
    • United States
    • United States State Supreme Court (California)
    • 24 Octubre 1969
    ...do not suffice to defeat this asserted privilege. (Cf. Locke v. Mitchell (1936) 7 Cal.2d 599, 602, 61 P.2d 922; Harnish v. Smith (1956) 138 Cal.App.2d 307, 310, 291 P.2d 532.) Supplementing its concededly conclusory claims that defendant 'wrongfully, wickedly, and maliciously' printed the e......
  • Royer v. Steinberg
    • United States
    • California Court of Appeals
    • 15 Marzo 1979
    ...Op. cit. supra, § 296, p. 2567.) Thus, slanderous utterances by members of a city council at a regular meeting (Harnish v. Smith (1956) 138 Cal.App.2d 307, 291 P.2d 532), letters read in the course of such meetings (Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 112 Cal.Rptr. 60......
  • MacLeod v. Tribune Pub. Co.
    • United States
    • United States State Supreme Court (California)
    • 3 Agosto 1959
    ...... See, Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 538, 186 P.2d 737; Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486, 493, 284 P.2d 194; Menefee v. Codman, 155 Cal.App.2d 396, 405, 317 P.2d 1032; Jeffers v. Screen ... See, Locke v. Mitchell, 7 Cal.2d 599, 602, 61 P.2d 922; Harnish v. Smith, 138 Cal.App.2d 307, 310, 291 P.2d 532; Glenn v. Gibson, 75 Cal.App.2d 649, 660-661, 171 P.2d 118; Irwin v. Newby, 102 Cal.App. 110, 113, ......
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