McMann v. Wadler

• Decision Date: 14 February 1961
• Citation: 11 Cal.Rptr. 37,189 Cal.App.2d 124
• Parties: Donald J. McMANN and Charles Misuraca, Plaintiffs and Respondents, v. Herman WADLER and Western Farms, Inc., Defendants and Appellants. Civ. 9991.
• Court: California Court of Appeals Court of Appeals

Page 37

11 Cal.Rptr. 37

189 Cal.App.2d 124

Donald J. McMANN and Charles Misuraca, Plaintiffs and Respondents, v. Herman WADLER and Western Farms, Inc., Defendants and Appellants.

Civ. 9991.

District Court of Appeal, Third District, California.

Feb. 14, 1961.

Rehearing Denied March 10, 1961.

Hearing Denied April 12, 1961.

Robert R. Elledge, Modesto, for appellants.

Nathaniel S. Colley and Mamoru Sakuma, Sacramento, for respondents.

WARNE, Justice pro tem.

Defendants appeal from judgments entered against them. The jury returned a verdict in favor of each plaintiff for $10,000 general damages and $10,000 punitive damages. Upon motion for a new trial the trial court ordered that a new trial would be granted unless respondent McMann consented to remit $7,000 of the amount awarded him as his general damage and Misuraca remit $5,000 of the amount awarded him as his general damage. Each plaintiff, in writing, remitted the amounts stated and the motion for a new trial was therefore denied.

Western Dairymen's Association is a nonprofit corporation whose membership is composed of dairymen operating primarily in the Sacramento and San Joaquin valleys. Appellant Western Farms, Inc., is engaged in the dairy industry and qualifies for membership in the Western Dairymen's Association. Appellant Herman Wadler was the manager of Western Farms, Inc. Although Wadler was not a member of the Western Dairymen's Association in his individual capacity, he did participate in the organization by virtue of his representation of Western Farms, Inc., and was elected a director of the Dairymen's Association. Respondent McMann served as manager of Western Dairymen's Association from 1955 to the summer of 1957, during which time the respondent Misuraca served as president of the Dairymen's Association.

It appears that there was a difference of opinion between Wadler and respondents as to how the affairs of the Western Dairymen's Association should be handled, and as a result thereof Wadler's contact with the Western Dairymen's Association was controversial.

On several occasions at various unit meetings of the Western Dairymen's Association throughout the valley and at several board meetings which Wadler attended there was turmoil, and on at least two occasions his conduct was so violent that he was arrested, tried and convicted of disturbing the peace. At various unit or branch meetings of the Association throughout the Sacramento-San Joaquin valleys, he charged that respondents were thieves. In addition, on or about January 14, 1957, appellant Wadler wrote a letter to each member of the Dixon-Solano Unit of the Western Dairymen's Association stating that respondent Misuraca had instructed a previous attorney of the association to give perjured testimony in a court proceeding and accusing Misuraca of sanctioning criminal conduct and 'Ku-Klux Klan type secrecy.' In January of 1957 Wadler addressed and mailed a letter to the 'Honorable Superior Courts of Merced County,' in which he asserted that the former attorney of the association had conspired with officers of the association to 'loot the association treasury.' It appears that appellants intended that it should be understood that the respondents were among those who had so conspired. Appellant Wadler testified that when he sent the letter he was acting pursuant to his 'inherent right to expose these people.'

As a result of Wadler's conduct in relation to Western Dairymen's Association, a formal charge was filed against Western Farms, Inc., and Wadler, under the bylaws of the association, for the purpose of determining whether or not the membership of Western Farms, Inc., should be terminated. The charge was that Wadler, as agent and representative of Western Farms, Inc. had engaged in a course of conduct which had disturbed the dignity and harmony of the association, impairing the good name thereof, and which would likely endanger the welfare, best interests and existence of the association. These charges were heard at a meeting of the board of directors of Western Dairymen's Association, held at Elk Grove, California, on April 13, 1957. At that meeting 17 members of the board, the association's attorney, and a deputy sheriff of Sacramento County were in attendance. The complaint alleged the slanderous utterance to have been made, willfully and maliciously, on the occasion of this meeting. It was also alleged that Wadler, at all times on the occasion, was acting as the agent of Western Farms, Inc., within the course and scope of his authority.

The words complained of are as follows:

'Because I am an individual, and when I find a thief, I have the right to expose him at any time and McMann is the lowest thief that I've seen. He is like the man who would steal pennies from a blind man's cup and so are you, [alleged to have been directed towards the respondent Misuraca] * * *.'

However, a transcription of a tape recording of the proceedings also shows, in part, the following:

'Colley: May I ask a question on behalf of the association, Mr. Wadler, in order that the record might be clear? What you are saying is that people have stolen money because of the operating under illegal bylaws or do you mean that they have taken money irrespective of any kind of bylaws?

* * *

* * *

'Wadler: I'm not making a charge. May I go further to clear the question you are making, Mr. Colley. I'm not charging McMann with,--I am making this specific, that he--dues came into the office that he did not enter among the records and put them in his pocket. He has entered them on the records. He deposited them but the checks Misuraca and McMann had countersign. All the records are there. They have been spent illegally. The money has all been spent illegally.

'Colley: And is that because the bylaws are illegal?

'Wadler: Yes.

'Colley: I see, but not because anybody has stolen the money and gone West with it. You don't mean that?

'Wadler: No. You know that.'

Section 47 of the Civil Code in part provides as follows:

'A privileged publication or broadcast is one made----

'1. In the proper discharge of an official duty.

'2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law; * * *

'3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, * * *.'

Appellants first contend that a meeting of the board of directors of a nonprofit corporation to remove a director is an 'official proceeding authorized by law' under section 47, subsection 2(3) of the Civil Code, and therefore that the communication in issue here was absolutely privileged. We feel that this contention is without merit. Surely it was not the legislative intent to grant an absolute privilege for every defamatory utterance made in every lawful meeting. We are persuaded that the 'official proceeding' embraced in the purview of the statute is that which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings, not a meeting of a board of directors of a nonprofit corporation or the like. See Prosser on Torts, 2d ed., Sec. 95; Gunsul v. Ray, 6 Cal.App.2d 528, 530, 45 P.2d 248.

The defamatory words spoken in this case clearly fall within the provisions of Civil Code, § 47, subsection 3(1) as being spoken by one interested to one interested. See 3 Restatement of Torts, Sec. 595; Jeffers v. Screen Extras Guild, Inc., 162 Cal.App.2d 717, 729-730, 328 P.2d 1030. However, the statute itself specifically requires that the communication, to be privileged, must be without malice. Proof of malice destroys the conditional privilege. Hale Company v. Lea, 191 Cal....