Schessler v. Keck

• Decision Date: 11 June 1954
• Citation: 125 Cal.App.2d 827,271 P.2d 588
• Court: California Court of Appeals Court of Appeals
• Parties: SCHESSLER v. KECK et al. Civ. 20057.

Page 588

271 P.2d 588

125 Cal.App.2d 827

SCHESSLER v. KECK et al.

Civ. 20057.

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

June 11, 1954.

Hearing Denied Aug. 4, 1954.

Randolph J. Soker, Los Angeles, for appellant.

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

FOX, Justice.

Defendants' individual demurrers to the second cause of action in plaintiff's first amended complaint were sustained without leave to amend. Their separate demurrers to the first cause of action were sustained with leave to amend within 20 days. Plaintiff appeals from the judgment of dismissal entered after she failed to further amend within that time.

Plaintiff's first cause of action alleges, so far as is here pertinent, that at all times referred to in the complaint she was an unmarried woman whose occupation, from 1946 until the present, was that 'of cooking and catering in fine homes in Beverly Hills and Bel Air' in Los Angeles County. During the years 1943-1944, while plaintiff was serving with the United States Women's Army Corps, it was discovered that she had a biologic false positive type of reaction to certain blood tests for syphilis, 'and the same was diagnozed as nonsyphilitic.' On July 30, 1945, which was approximately the time plaintiff received an honorable discharge from military service, the Chief, Division of Serology, Army Medical Center of the Army Service Forces, Washington, D. C., issued a memorandum which stated these facts regarding plaintiff's biologic false positive (nonsyphilitic) type of reaction. ¹ In 1946, in an attempt to eliminate this false positive type of reaction, plaintiff visited the Mayo Clinic in Rochester, Minnesota, where she underwent examinations which resulted 'in the same diagnosis as nonspecific.' In September, 1946, plaintiff having returned to California for treatment for the purpose of eliminating the false positive type reaction, the Mayo Clinic referred this information at plaintiff's request to Dr. Clyde O. Wood of Beverly Hills, California.

It is next alleged that on about September 23, 1946, plaintiff consulted Dr. Wood in Beverly Hills and presented to him the memorandum from the Army Medical Center previously referred to. This memorandum was clamped 'to the top or front' of Dr. Wood's file or chart pertaining to plaintiff, where it remained from about September 23, 1946, to approximately the middle of 1950, a period during which plaintiff was treated in Dr. Wood's office. During 1946, 1947 and 1948, a part of plaintiff's treatment in Dr. Wood's office consisted of injections administered by a registered nurse then known as Jean Florian and now known as Jean Keck, one of the defendants herein. Jean had access to plaintiff's file or chart. During 1946, 1947 and 1948 plaintiff discussed her case with Jean in Dr. Wood's office, and informed Jean of the false positive (nonsyphilitic) diagnoses made by the Army Medical Center and the Mayo Clinic. Plaintiff told Jean she did not have syphilis but was taking the treatments only for the purpose of trying to eliminate the false positive type reaction and requested that Jean read her medical file and particularly the Army memorandum. It is alleged that Jean 'stated to plaintiff that she had read and understood the same.'

In Paragraph VII of her first cause of action, plaintiff alleges: 'That thereafter in about August, 1948, the defendants combined and conspired by common design to defame and damage the plaintiff in the following manner, to wit: that the defendant Jean Florian was associating socially with the defendant William Keck, and visited in his home located at 283 Bel Air Road, Los Angeles, California; and that the defendant Sallie May Ferguson was employed by the defendant William Keck as a secretary-housekeeper, and lived in said home; and that the defendant Hazel Edwards was employed by the defendant William Keck as a maid, and lived in said home, 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, 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. That said statements, so made and published, imputed to plaintiff the present existence of an infectious, contagious, or loathsome disease, and imputed to plaintiff a want of chastity.'

Paragraph VIII recites: '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 alleges, in part, 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.'

Plaintiff's first cause of action concludes with the allegations, among others, that the said statements were false, untrue and unprivileged and constituted slander per se; that they exposed plaintiff to ridicule, contempt, hatred, and social ostracism and tended directly to injure her in her trade of cooking and catering by the imputation that she was not free of an infectious or loathsome disease; and that they were the proximate cause of the special damage to plaintiff therein described.

Plaintiff's second cause of action, after repleading virtually all the allegations of the first cause of action recites: 'That whereas the defendants have imputed to plaintiff during the times above alleged the present existence of an infectious, contagious and loathsome disease, to wit: syphilis; and whereas the plaintiff alleges that she has never had and does not have the said disease, a controversy has arisen between the parties, and plaintiff desires a declaration establishing the truth of and concerning the plaintiff, that she has never had and does not now have syphilis, and that such statement and imputations to that effect, as above alleged, are false, untrue and slanderous per se; plaintiff seeks a declaration of the right and duties of the respective parties in the premises; and the plaintiff does not have any remedy which is as plain, speedy and adequate and well suited to the plaintiff's needs as declaratory relief.'

The prayer was for a joint and several judgment for damages on the first cause of action; for a declaration on the second cause of action 'that plaintiff never had and does not now have syphilis and that such statements to that effect * * * are false, untrue and slanderous per se;' and for general relief.

Defendants William and Jean Keck and Hazel Edwards individually filed general and special demurrers to the complaint, and specifically set up the one-year statute of limitations as contained in section 340(3), Code of Civil Procedure.

All demurrers to the second count were sustained without leave to amend. Each demurrer to the first cause of action was sustained with leave to amend. Following plaintiff's election to stand upon her pleading, the court dismissed plaintiff's complaint against the demurring defendants. Plaintiff appeals from the judgment of dismissal.

It is not disputed that the utterances attributed to defendants are of the character which, if false and unprivileged when published, constitute slander per se, Civ. Code, sec. 46(2-4), for which an action will lie even without an allegation of special damages. Semple v. Andrews, 27 Cal.App.2d 228, 81 P.2d 203; McLean v Altringer, 114 Cal.App. 363, 367, 300 P. 79; 16 Cal.Jur., pp. 38-9. However, defendants William and Jean Florian Keck contend that the complaint fails to state a cause of action for slander against them since it appears on the face of the complaint that their allegedly slanderous statements were published more than four years before January 13, 1953, the date upon which the complaint was filed. Code Civ.Proc., sec. 340(3). They seek to invoke the rule that where the complaint affirmatively shows upon its face that the action is outlawed by the passage of the limitation period, the bar of the statute of limitations may be raised by demurrer. Calif. Safe Deposit etc. Co. v. Sierra etc. Co., 158 Cal. 690, 698, 112 P. 274; 16 Cal.Jur. p. 606. However, 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. People v. Hess, 104 Cal.App.2d 642, 678, 234 P.2d 65. In 53 C.J.S., Libel and Slander, §...