MacLeod v. Tribune Pub. Co.

• Decision Date: 03 August 1959
• Citation: 343 P.2d 36,52 Cal.2d 536
• Court: California Supreme Court
• Parties: Grover MacLEOD, Appellant, v. TRIBUNE PUBLISHING CO., Inc. (a Corporation), Respondent. S. F. 20123.

Page 36

343 P.2d 36

52 Cal.2d 536

Grover MacLEOD, Appellant, v. TRIBUNE PUBLISHING CO., Inc. (a Corporation), Respondent.

S. F. 20123.

Supreme Court of California, In Bank.

Aug. 3, 1959.

Rehearing Denied Aug. 31, 1959.

Graves & MacLeod and Donald MacLeod, Oakland, for appellant.

Price, Macdonald & Knox, Harry L. Price and John Charles Houlihan, Oakland, for respondent.

TRAYNOR, Justice.

This appeal is from a judgment of dismissal entered after defendant's special and general demurrer to plaintiff's original complaint for libel was sustained without leave to amend. Accordingly, the issues presented are whether the complaint states a cause of action, and if not, whether there is a reasonable possibility that it could be amended to do so. See, Lemoge Electric v. County of San Mateo, 46 Cal.2d 659, 664, 297 P.2d 638; 2 Witkin, California Procedure, Pleading, § 505, pp. 1496-1497.

Plaintiff's complaint alleged that he is a doctor of dental surgery practicing in Oakland and that he enjoyed a good name and reputation in his profession and occupation. On April 19, 1955, defendant printed, published, and circulated in its newspaper, the Oakland Tribune, 'on the front page thereof, an article or statement in writing in which said' defendant 'falsely and maliciously and with intent to injure, disgrace, and defame plaintiff, used and published the following language of and concerning the plaintiff:

"Red Paper Issues Election Extra

"The San Francisco People's world, recognized throughout the state as the mouthpiece of the communist party, distributed a last-minute extra edition in Oakland yesterday, on the eve of the city election.

"It verified reports that the paper is showing unusual interest in Oakland and its city election.

"The Communist-line paper defended the proposal to revive ward politics in Oakland and printed a list of recommendations which included the names of council candidates John F. Quinn, John W. Holmdahl, and Dr. Grover H. MacLeod. It also listed recommendations against police reorganization measures which were endorsed by the Alameda County Grand Jury following its recent investigation.

"The polls are open until 7 p. m. today."

Defendant 'by said publication intended to be understood by the general public and readers, and it was so understood by them, as charging, asserting, and imputing that this plaintiff was a communist sympathizer or fellow traveler, and that this plaintiff had received a recommendation from 'The San Francisco People's World,' and that the said San Francisco People's World had 'distributed a last-minute extra edition in Oakland' which allegedly contained the recommendation as aforesaid, (when in truth and in fact that San Francisco People's World did not endorse or recommend plaintiff in said article), and all said charges, references, assertions, and imputations were false, malicious, and unprivileged, and were calculated to and did expose plaintiff to hatred, contempt, ridicule, and obloquy, causing him to be shunned and avoided, and proximately caused him to sustain a severe and continuing nervous shock and strain and to suffer great mental anguish, mortification, humiliation, and shame; all to his damage in the sum of $200,000.00.' Plaintiff also suffered pecuniary loss in his profession as a dentist.

Plaintiff served a demand for a correction upon defendant pursuant to section 4A of the Civil Code, but no correction was made. He prayed for special, general, and exemplary damages and the costs of suit.

'Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.' (Civ.Cide, § 45.)

Defendant contends that plaintiff has not adequately alleged that its statement was false and that he conceded in oral argument before the trial court that he could not do so. It points out that the complaint refers to an article in the People's World, that it may be inferred that plaintiff was named therein, and that plaintiff admitted in the trial court that the People's World printed a list of recommendations that included his name. The transcript of the oral proceedings before the trial court is not before us, however, and plaintiff's alleged admission appears only in what purports to be a brief excerpt of that transcript quoted in defendant's brief in the trial court. ¹ Even if we assume that under these circumstances plaintiff's alleged admission may be considered on appeal, that admission is not a concession that the allegations of the complaint are untrue. The sting of the alleged libel is that the People's World, a communist-line paper, endorsed and recommended plaintiff for election and that therefore he was a communist sympathizer or fellow traveler. We agree with defendant, that standing alone the admission that the paper printed a list of recommendations would convey the idea that the paper recommended those listed. Plaintiff expressly alleged in his complaint, however, that 'in truth and in fact the San Francisco People's World did not endorse or recommend plaintiff in said article' and that 'all said charges, references, assertions, and imputations (of defendant's article) were false.' In the light of these allegations, plaintiff's admission cannot be interpreted as meaning that the People's World itself recommended him, for his allegations, admitted by defendant's demurrer, precluded giving his admission that interpretation.

The only reasonable interpretation of defendant's article, however, is that the People's World itself recommended plaintiff for election. The article dealt specifically with the interest being shown by the People's World in the Oakland election, it expressly pointed out that that paper defended the proposal to revive word politics, and it contained no hint that the printed recommendations were not those of the paper itself. Defendant was reporting news, and the news value of its article lay, not in the fact that a person or persons unnamed recommended plaintiff, but in the fact that the People's World did so. Certainly no reader would reasonably assume that defendant meant no more than that the People's World had printed the recommendations of unnamed third persons or carried a political advertisement in its columns. Accordingly, the question presented is whether it is libelous falsely to charge that a candidate for city council has been recommended by a communist-line paper or the mouthpiece of the Communist Party.

This question cannot be avoided, as defendant contends, on the ground that plaintiff has denied that the People's World is a communist paper. Defendant states that plaintiff has pleaded that all of the charges in defendant's article are false. It contends that he has therefore taken the position that the People's World is not a communist paper and points out that it is not libelous to state that a person has been recommended by a noncommunist paper. This contention is patently absurd. Whether or not the People's World is 'the mouthpiece of the communist party' and a 'Communist-line paper,' defendant so characterized it and thus informed its readers that plaintiff had communist support. The sting of this charge is present whether or not the People's World is in fact a communist paper, and accordingly, even if plaintiff has taken the position in his complaint that it is not a communist paper, he has not pleaded that defendant's article was nondefamatory. Moreover, plaintiff's allegations of falsity may reasonably be interpreted as denying only the charges as they pertained to him by imputing to him communist support and therefore communist sympathies. Although defendant may be entitled to have the complaint clarified to determine whether it must meet the issue of the character of the People's World as well as the issue whether or not it recommended plaintiff, it is obvious that an appropriate amendment would serve that purpose, and that even if plaintiff elects to allege specifically that the People's World is not a communist paper, he will not allege himself out of court. It is just as defamatory to state that a paper that has recommended a candidate is a communist paper when it is not as to state that an admittedly communist paper recommended a candidate when it did not. ²

Whatever the rule may have been when anti-communist sentiment was less crystalized than it is today (see, Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 348, 121 P.2d 761; Gallagher v. Chavalas, 48 Cal.App.2d 52, 59, 119 P.2d 408), it is or sympathy is libelous on its face. Farr v. Bramblett, 132 Cal.App.2d 36, 48, 281 P.2d 372; Utah State Farm Bureau Federation v. National Farmers Union Service Corp., 10 Cir., 198 F.2d 20, 23, 33 A.L.R.2d 1186; Grant v. Reader's Digest Ass'n, 2 Cir., 151 F.2d 733, 734; see also, Black v. Cutter Laboratories, 43 Cal.2d 788, 800, 278 P.2d 205; Prosser, Torts (2d ed.) 578; Yankwich, Certainty in the Law of Defamation, 1 U.C.L.A.Rev. 163, 168; Note, 33 A.L.R.2d 1196, 1212. Plaintiff alleged that defendant's article was intended to be and was understood as charging that he was a communist sympathizer or fellow traveler. Whether or not the article is reasonably susceptible of this interpretation is a question for the court and, if so, whether or not it was so understood is a question for the jury. Maher v. Devlin, 203 Cal. 270, 278, 263 P. 812; Mellen v. Times-Mirror Co., 167 Cal. 587, 593, 140 P. 277; Keenan v. Dean, 134 Cal.App.2d 189, 195, 285 P.2d 300; Gallagher v. Chavalas, 48 Cal.App.2d 52, 58, 119 P.2d 408.

'The Code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. Schomberg v. Walker, 132 Cal. 224, 64 P. 290; ...