Pond v. General Electric Company

• Decision Date: 01 April 1958
• Docket Number: No. 15520.,15520.
• Parties: Jules POND, Appellant, v. GENERAL ELECTRIC COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

256 F.2d 824 (1958)

Jules POND, Appellant, v. GENERAL ELECTRIC COMPANY, a Corporation, Appellee.

No. 15520.

United States Court of Appeals Ninth Circuit.

April 1, 1958.

Russell K. Lambeau, Los Angeles, Cal., for appellant.

Meserve, Mumper & Hughes, E. Avery Crary, Robert A. Stewart, Jr., Los Angeles, Cal., for appellee.

Before FEE and CHAMBERS, Circuit Judges, and CHASE A. CLARK, District Judge.

JAMES ALGER FEE, Circuit Judge.

Jules Pond brought an action against General Electric Company for damages on account of the publication of four supposed libels. The trial court sustained a motion to dismiss the amended complaint and, upon refusal of Pond to plead further, entered judgment dismissing the action. This appeal followed.

The "First Amended Complaint — Damages — Defamation" set up allegations outlined below. Pond is a qualified engineer who had been employed in Argentina, Asia and the United States by International General Electric Company and foreign subsidiaries thereof for some seventeen years. He resigned in 1950. He was given a service letter by the Company, wherein his various assignments and positions with the Company were set out in detail. It is related therein that he resigned because he believed his prospects with the Company were unsatisfactory. The letter, which contained references to his personality and his professional ability in rather glowing terms, concluded with hopes for his success in the future. The complaint then expressly alleges there was an "express understanding" between Pond and the Company that Pond could use this letter "for the purpose of obtaining employment" and that the Company "would provide prospective future employers of plaintiff with the same facts as were recited" in this letter and "would answer any other inquiries that it could answer in accordance with the facts." It is also alleged that all the persons to whom Pond reported during his employment are alive. It is then pleaded that Pond sought employment in 1956 from four different firms, the agents of which purportedly read the letter above referred to. Each of these wrote a letter asking specific questions concerning the honesty, loyalty, competency, responsibility, ability to get along with people, desirability as a security risk and any other comments as to the ability and character of Pond. The letter in response to each of these inquiries was set out in full as an exhibit to the complaint. It reads:

"This is in reply to your letter of March 12 in which you request information concerning Mr. Jules S. Pond.

"The official in International General Electric to whom Mr. Pond reported passed away several years ago, and I am unable to give you first-hand information concerning him. His personnel record with the Company indicates that he had approximately 17 years of service in the International General Electric family. His initial engagement was with General Electric S.A., Argentina. During the early 40\'s he came to the United States of his own volition, seeking opportunity for engagement here while in the process of securing naturalization as a U. S. citizen. He was hired by International General Electric after his arrival in the United States, and was assigned to our Air Conditioning and Refrigeration Department. Our records further indicate that he submitted his resignation on August 9, 1950, which was accepted by mutual agreement.

"Insofar as I can determine from his records, we would not be prepared to consider him for re-engagement.

"Very truly yours "Charles Mentzer "Specialist-Personnel."

It is alleged that the statement that the official to whom Pond reported had died was false. It is alleged that it was untrue that the writer was unable to give first-hand information about him. It is set up that the letter was worded as it was because of personal malice and ill will of certain employees of the Company.

It is claimed by innuendo that the prospective employer was given the impression that the service letter might not be authentic or correct, that the Company files contained much information unfavorable to Pond, and that it could not give a favorable report or recommendation as to him. The pleading indicates that the Company should have repeated the detailed information in the service letter. It was claimed the Company should have answered specifically questions about the ability, loyalty and other characteristics of Pond, and should have included favorable statements which it is alleged were borne out by his record. It is specifically alleged that the Company knew that, before plaintiff became a citizen of this country, his surname had been Podnossof, that he was born in Poland, that he had attended primary and high schools in Soviet Russia, and that he had lived in the U.S.S.R. It is further alleged that the Company knew any prospective employer of plaintiff would know such facts and be sensitive to any comment or attitude of a former employer as to his loyalty and his desirability as a security risk. It is alleged that the Company well knew that plaintiff was not a security risk, that his loyalty was above reproach, and that his honesty and integrity were deserving of a favorable recommendation. It is alleged that the disclaimer of personal knowledge by the writer and the gratuitous suggestion that from his records the Company would not be prepared to consider him for re-engagement would magnify the negative character of the reply, and the omissions would be more pointed and the recipient so understood them.

Affirmatively, it is alleged that the information contained in the reply was of little or no interest to the prospective employers, that his service with the Company had been entirely satisfactory, and that he was an exceptionally competent engineer.

Ordinarily, a motion to dismiss should not be granted. Where there is any doubt about the character of the action, doubts should be resolved in favor of the pleader. If there is a possibility that a good claim has been stated defectively, the precedents indicate the motion should be denied. However, these rules do not apply to the instant complaint.

It is unquestionable that a cause of action in libel is attempted. The pleader was no novice. Technically, the pleading is excellently done. But a cause of action is not stated. None could be stated.

A casual glance at the reply letter shows that it is not and could not be libelous per se. Nor is the letter in question reasonably susceptible to a defamatory meaning in light of the surrounding extrinsic facts pleaded by way of inducement.

A detailed study of the writing proves that there is nothing defamatory contained therein.¹ Where such a plainly worded communication is set out as the basis of complaint, the innuendo can serve no purpose.² The device of innuendo and detailed inducement was adopted here to explain the...