Markwell v. Sykes

• Decision Date: 14 September 1959
• Citation: 173 Cal.App.2d 642,343 P.2d 769
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret MARKWELL, Plaintiff and Appellant, v. Ruby SYKES, Defendant and Respondent. Civ. 23655.

Page 769

343 P.2d 769

173 Cal.App.2d 642

Margaret MARKWELL, Plaintiff and Appellant, v. Ruby SYKES, Defendant and Respondent.

Civ. 23655.

District Court of Appeal, Second District, Division 2, California.

Sept. 14, 1959.

Rehearing Denied Oct. 9, 1959.

Hearing Denied Nov. 10, 1959.

Brock, Fleishman & Rykoff, Robert L. Brock, Hollywood, for appellant.

Robert Cushman, Melvin B. Grover, and Henry E. Kappler, Los Angeles, for respondent.

ASHBURN, Justice.

Appeal from judgment of nonsuit in plaintiff's slander action. The amended complaint alleged that plaintiff conducted a rest home for aged persons in Los Angeles pursuant to license issued by the Department of Social Welfare of the County of Los Angeles; that defendant knew that said department received complaints and ordered inspections of the operation of rest homes. That on July 28, 1954 defendant, acting under an assumed name, verbally stated to Marjorie Skinner, one of the deputies in said department: 'That, 'plaintiff used hypodermic needles and injected narcotics into the bodies of her patients to keep them quiet so that she could conduct drinking parties and gambling in her home.' That, 'plaintiff locked her patients in bedrooms of her home after administering to them a narcotic shot to keep them quiet, so that she could conduct drinking parties and gambling in her home.' That, 'plaintiff had insane patients locked in her bedrooms to keep them quiet while she conducted wild parties for drinking and gambling in her home.' That, 'plaintiff permitted her patients to participate in gambling on her premises and afterwards administered to them a shot (implying a narcotic shot), locked them up in her bedrooms, so that she would not be bothered with them any more.' That, 'plaintiff operated and conducted gambling in her garage on her premises.'' It was also alleged that said statements were false and malicious, known to be false, made with malice and ill will toward plaintiff and with intent to injure her in her business etc.; concealment of the cause of action was also charged and damages were alleged.

Appellant's opening brief appropriately says: 'The nonsuit was the result of a ruling by the trial court that the principal witness for appellant was incompetent to testify with respect to material and relevant facts in support of appellant's causes of action solely because of the provisions of § 1881, subdivision 5 of the Code of Civil Procedure which, in the view of the trial court, barred the witness' testimony as privileged communications. Whether the construction and application of the aforesaid statute by the Court below, in the light of the particular record herein, was correct is the fundamental question presented on this appeal.' Said § 1881 says: 'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases: * * * 5. [Public officers.] A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

Prior to trial defendant initiated proceedings for the taking of the deposition of said Marjorie Skinner, who testified that she was then a retired social worker of the Public Welfare Commission of Los Angeles County and immediately claimed that communications made to her as an employee of that Commission, and any records of same, were confidential, that she had consulted the County Counsel and been so advised; she further refused to answer any questions as to any complaint concerning the home operated by plaintiff or as to any records of same. The matter was then presented to the court (a judge other than the trial judge) for a ruling upon the question of privilege, all such objections were overruled and the witness was ordered to answer the questions. In due course she appeared and testified fully upon the subject.

The whole trial revolved around the question of privilege. When the court had indicated that it was about to sustain that objection counsel for plaintiff made this offer of proof:

'Mr. Brock. We would prove by this witness's [Mrs. Skinner's] testimony--and I might say that this would be the only testimony we would have relative to the publication of the slander--the following: That the defendant, Ruby Sykes, stated to this witness that at a party given by the plaintiff, the plaintiff had said that she had given the aged ladies--referring to the ladies whom she had in her home for the aged--shots of narcotics to put them to sleep; further, that the defendant stated to this witness that there was and had been both at the party and other occasions gambling conducted in the garage at the home of the plaintiff; and further, that the defendant said on several occasions that she wanted this witness to go out right away and get the plaintiff's license, that the plaintiff was not a fit person to operate a home for the aged; and that resulting from that conversation the Department, the Bureau of Public Welfare did conduct an investigation. That would be our proof on this point.'

The objection having been sustained, counsel for defendant made a motion for nonsuit.

'Mr. Grover: So on the basis of that, your Honor, at this time the defendant, Ruby Sykes, moves the Court for a nonsuit.

'The Court: Do you want to state for the record the grounds for your motion?

'Mr. Grover: The ground being, your Honor, that there is an insufficiency of evidence to prove the allegations contained in the complaint.

'Mr. Brock: I take it that relates to the allegations as to the utterance of the slander? That is the only issue we are concerned with.

'Mr. Grover: As to the liability; that does not go to the question of damages.

'The Court: Well, the Court feels that the motion must be granted and is granted. And I should like to state so there is no misunderstanding as to the Court's rulings made which precluded the evidence, which otherwise, of course, would have meant that the Court would not have granted the nonsuit had it been received, but the Court's view is that the agency involved here is a public agency and it has a responsibility, a public responsibility with respect to homes of this type for the aged. Apparently it has licensing authority.'

Arguments presented by respondent in the lower court and here proceed from time to time upon the assumption that somehow defendant has a valid claim of privilege with respect to the words alleged to be slanderous. But the respondent's brief concedes the contrary. 'Appellant asserts that the defendant Sykes, during the taking of her deposition, made no claim of 'privilege.' Obviously, this is accurate, since no such privilege could be asserted by the defendant. * * * It is apparent that respondent cannot be charged with any waiver. Counsel for respondent did not represent the witness and could not instruct her not to answer.' Manifestly this is true. The privilege is for the benefit of the state (58 Am.Jur. § 534, p. 300) or its agencies and the cloak of testimonial immunity is thrown only around such public officials. Witkin on California Evidence, p. 487, § 436b. Whether there can be any waiver is often a difficult question (Fricke on Cal.Crim. Evidence (3d Ed.), p. 314); when the right of waiver exists it cannot be exercised by a subordinate employee in the exercise of his own discretion. 97 C.J.S. Witnesses § 307, p. 852; Gilbertson v. State, 205 Wis. 168, 236 N.W. 539, 540-541. In any event the existence of a privilege in the state presents a question for the court (People v. Curry, 97 Cal.App.2d 537, 548, 218 P.2d 153; Crosby v. Pacific S. S. Lines, 9 Cir., 133 F.2d 470, 475; 8 Wigmore on Evidence (3d Ed.), § 2379, p. 799; Dwelly v. McReynolds, 6 Cal.2d 128, 131, 56 P.2d 1232), not for the head of the department, to determine (97 C.J.S. Witnesses § 305, p. 848); on a parity with that question is the further one whether the public interest would suffer by a disclosure. See annotations at page 451 of Vol. 95 Lawyers Edition of U. S. Supreme Court Reports, and at page 740 of 97 L.Ed.; also, Holm v. Superior Court, 42 Cal.2d 500, 507, 267 P.2d 1025, 268 P.2d 722.

State ex rel. Douglas v. Tune, 199 Mo.App. 404, 203 S.W. 465, discusses the question of privilege in a libel suit upon a complaint similar to the one at bar. At page 467 it is said: 'The creation of the board, in itself and in a measure, invites complaints from citizens of their officers and of public employes. If every citizen who knows of the unfitness of an officer or employe, or of facts he thinks require an investigation, believes it his duty to lodge information before the board, he will hesitate a long while before doing so if he knows his complaint is to be made public and become of the public records, so that any one may have access to it and he subjected to action for a possible libel. It is not to be expected, if that is so, that very many will come forward and lodge a complaint. We think that if it was understood that the complaints lodged by citizens against these employes were to become public property, without the consent of the party filing them, that the very object for which this board is created would be defeated. It may be that in sealing the records, so far as relates to these complaints, from public inspection, some individual will be hurt, but the right of that individual must yield to the right and to the benefit of the public at large. In our opinion these communications by citizens to the Complaint Board, covering the conduct of public officers and employes, are to be considered as highly confidential, and as records to which public policy would forbid the confidence to be violated.' To the same effect see Runyon v. Board of Prison Terms and Paroles of California, 26 Cal.App.2d 183, 184, 79 P.2d 101.

The Manual for Boarding Homes for Aged and Children, adopted and used by the Department of Social...