Schessler v. Keck

• Decision Date: 25 January 1956
• Citation: 292 P.2d 314,138 Cal.App.2d 663
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth SCHESSLER, Plaintiff and Appellant, v. William KECK, Jean Keck et al., Defendants and Respondents. Civ. 21276.

Page 314

292 P.2d 314

138 Cal.App.2d 663

Elizabeth SCHESSLER, Plaintiff and Appellant, v. William KECK, Jean Keck et al., Defendants and Respondents.

Civ. 21276.

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

Jan. 25, 1956.

Randolph J. Soker, Los Angeles, for appellant.

Hanna & Morton and Harold C. Morton, Los Angeles, for respondents.

ASHBURN, Justice.

Plaintiff Elizabeth Schessler appeals from a summary judgment rendered pursuant to § 437c Code of Civil Procedure in favor of defendants William Keck and Jean Keck. In an amended complaint plaintiff charges defendants William Keck, Jean Keck, Sallie May Ferguson, and Hazel Edwards, with slander in that they made statements imputing to her a loathsome disease. The utterances are alleged to have occurred in August, 1948, and to have been repeated by defendant Edwards to one Ann Storms in the winter of 1949 or spring of 1950, and to one Nell Robinson in March, 1952. It is further alleged 'That thereafter in about August 1948, the defendants combined and conspired by common design to defame and damage the plaintiff in the following manner * * * that the defendants then and there discussed the plaintiff and by common understanding, design, purpose and use of language did declare and disseminate opprobrious statements of and concerning the plaintiff * * *.' Demurrers of defendants Keck were sustained without leave to amend. That ruling was reversed by this court in Schessler v. Keck, 125 Cal.App.2d 827, 271 P.2d 588. Demurrants relied upon the statute of limitations and the fact that the utterances alleged to have been made by them occurred in 1948, the action being filed on January 13, 1953, long after the prescribed one-year period of limitation, Code Civ.Proc. § 340, subd. 3. The basis of the reversal was that, 125 Cal.App.2d at page 832, 271 P.2d at page 592, 'plaintiff's complaint alleges that all of the slanderous statements purportedly published by the defendants were committed in furtherance of a conspiracy formed by said defendants to defame and damage her. She has alleged a publication by defendant Edwards to Nell Robinson as late as about March, 1952, in furtherance of the common design of the defendants to slander her. While a conspiracy is in existence, the statute of limitations will not begin to run until there is a cessation of the wrongful acts committed in furtherance of the conspiracy.' As a matter of pleading the charge of conspiracy was held sufficient, 125 Cal.App.2d at page 833, 271 P.2d 588. Like general allegations have been upheld as good pleading in California Auto Court Ass'n v. Cohn, 98 Cal.App.2d 145 149, 219 P.2d 511; Abbot Kinney Co. v. Harrah, 84 Cal.App.2d 728, 733, 191 P.2d 761; Moropoulos v. C. H. & O. B. Fuller Co., 186 Cal. 679, 682, 688, 200 P. 601; Mox Incorporated v. Woods, 202 Cal. 675, 677, 262 P. 302.

After the reversal defendants Keck moved for summary judgment. Their answers specifically denied the conspiracy charge and raised the defense of limitation. In view of this court's ruling upon the former appeal, it is evident that the statute had run unless there had been a conspiracy as alleged. Defendants in support of their motion undertook by affidavits to establish that the issue was a spurious one raised by plaintiff, one that could not be supported by any substantial evidence. The substance of the factual allegations they had to meet (aside from the general charge of conspiracy) was that defendant Jean Keck (then Jean Florian) was a social acquaintance of William Keck and visited in his home; that Sallie May Ferguson was there employed as secretary-housekeeper; that Hazel Edwards worked there as a maid; 'that the defendants then and there discussed the plaintiff and * * * did declare and disseminate opprobrious statements of and concerning the plaintiff, to-wit: that the plaintiff was being treated for syphilis in the office of Dr. Wood, and that the plaintiff should not be employed as a cook. * * *' Paragraph VIII: 'That the said statements of and concerning the plaintiff, were repeated and published by the defendants in about August, 1948, in furtherance of their common design, successively, by defendant Jean Florian to defendant, William Keck, by the defendant, William Keck, to defendant, Sallie May Ferguson, by defendant Sallie May Ferguson, to defendant, Hazel Edwards, and by the defendant, Hazel Edwards at various times and places to numerous persons, including to one Ann Storms in the winter of 1949 or spring of 1950, and to one Nell Robinson in about March of 1952, and plaintiff is informed and believes and upon such information and belief alleges that the defendants repeated and published the same to numerous other persons unknown to plaintiff but known to defendants.' Paragraph IX contains this: 'That the circumstances were known to the defendants and each of them at the time of the said respective publications, which gave them reason to expect repetition as above alleged, in that the defendants knew the plaintiff to be employed as a cook and cateress in Beverly Hills or Bel Air, where the defendants likewise resided or were employed; that the plaintiff and defendants knew and were acquainted with numerous employers, employees and others in the said vicinity of Beverly Hills and Bel Air; and that said repetition and republication was the natural and probable consequence of the respective acts of the defendants.'

The William Keck affidavit states that during July and August, 1948, Sallie May Ferguson was in his employ as a housekeeper; that he told her in July that he did not want to employ Joe Schenck's cook (meaning plaintiff) in his home because she had 4 plus blood; that Ferguson Left in the spring of 1949 and has not been employed by him since that time; that he has not talked to her on any subject whatever and has not seen her since that time, nor communicated with her or she with him in any manner whatsoever. The Jean Keck affidavit says that upon one occasion in July, 1949, Sallie May Ferguson asked her on the telephone whether plaintiff had syphilis and she replied in the negative; that this was the only occasion upon which she discussed the plaintiff with said Ferguson; that after affiant's marriage to William Keck said Ferguson was employed in the Keck home as housekeeper until the spring of 1949 when she left; that she has not been employed by the Kecks since; that affiant has not had any personal conversations, telephone conversations or other communications from or to said Ferguson since the time she left the Kecks' employment, except that affiant received an unsolicited letter from Ferguson which was written on the day this action was filed.

Concerning the defendant Hazel Edwards, William Keck's affidavit says that she was employed as a maid in his home before and during July and August, 1948, and until the spring of 1949 when she left; that he had no conversation with her about plaintiff; that she has not been in his employment since that time; that he has not talked to her nor has she talked to him since she left his home; that he has not communicated with her nor received any communication from her during that period of time. Defendant Jean Keck's affidavit says that on one occasion in the fall of 1948 Hazel Edwards asked her, when no one else was present, whether plaintiff had syphilis and she replied in the negative; that that is the only occasion on which she discussed plaintiff with said Edwards; that she has not had any personal or telephone conversations with Edwards or any communication from or to her from the time she left the Keck employment, except that in March, 1949, she received a letter from Edwards which did not mention plaintiff in any manner whatsoever.

Both defendants deny the charge of conspiracy. William Keck in his affidavit says: 'In neither my conversation set out above with Mrs. William Keck (then Miss Jean Florian) nor in may conversation set out above with Sallie May Ferguson did I enter into any agreement, express or implied, with them, or either of them, to...