Williams v. Daily Review, Inc.

• Decision Date: 09 August 1965
• Citation: 236 Cal.App.2d 405,46 Cal.Rptr. 135
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony T. WILLIAMS, Irving A. Williams, Williams Brothers, a copartnership, and Williams Brothers Construction Company, Inc., Plaintiffs and Appellants, v. The DAILY REVIEW, INC., and Charles Hegg Peterson, Defendants and Respondents. Civ. 21889.

Page 135

46 Cal.Rptr. 135

236 Cal.App.2d 405

Anthony T. WILLIAMS, Irving A. Williams, Williams Brothers, a copartnership, and Williams Brothers Construction Company, Inc., Plaintiffs and Appellants, v. The DAILY REVIEW, INC., and Charles Hegg Peterson, Defendants and Respondents.

Civ. 21889.

District Court of Appeal, First District, Division 1, California.

Aug. 9, 1965.

Rehearing Denied Sept. 2, 1965.

Howard s. Burnside, Menlo Park, for appellants.

John C. Houlihan, William J. Hayes, Hardin, Fletcher, Cook & Hayes, Oakland, for respondents, Cyril Viadro, San Francisco, of counsel.

MOLINARI, Justice.

Plaintiffs appeal from a judgment in favor of defendants, The Daily Review, Inc., a corporation, and Charles Hegg Peterson, ¹ after a jury verdict in a libel action. The appeal is directed solely to the propriety of certain jury instructions.

Statement of the Case

Plaintiffs, ² who are engineering contractors and whose business is conducted primarily in Southern Alameda County, were, in the fall and winter of 1960-1961, engaged in paving several blocks of 'A' Street in the City of Hayward. Plaintiffs were performing this work pursuant to a contract with the City of Hayward, this job having been awarded to them as the lowest bidder. Although the original contract specified that the work was to be completed by November 5, 1960, plaintiffs had requested and been granted several extensions of time (to January 25, 1961; January 30, 1961; Rebruary 9, 1961; February 13, 1961; and finally April 25, 1961), in each case without the assessment of liquidated damages. As to each of these extension requests, plaintiffs claimed that they could not complete their work until certain utilities had been relocated by the telephone company and the City of Hayward, and that neither of these two projects had been timely performed.

On February 14, 1961, during the course of a Hayward City Council meeting, which was held to discuss matters unrelated to plaintiffs and their paving work for the City, one councilman observed that a resident of 'A' Street had complained to him about the delay in completing the paving project on that street. The councilman concluded by stating "* * * I understand they're about 30 days behind schedule on completion of this work." In response to this comment, Edward Phillips, Director of Public Works for the City of Hayward, made the following statement: "Yes, sir, Mr. Mayor, Council [sic] Blichfeldt. The contractor is behind schedule. We feel at this point that the work is not progressing satisfactorily. The contractor has been notified that because of his slow progress of work we feel that under the sections of the contract calling for liquidated damages that this is entirely probable in his case and urge that he recognize this fact and complete the work with due diligence. He is a little contract [sic]. We feel that--and he has been notified that he is subject because of this to liquidated damages." Councilman Blichfeldt then requested of the mayor that "we keep posted on this thing," and the mayor accordingly asked Mr. Phillips for a periodic progress report.

Peterson, a reporter for The Daily Review, which is published by defendant corporation and had at the time of this meeting a circulation of 26,498 generally in the cities and unincorporated areas of Southern Alameda County, attended the council meeting and prepared the following article, which appeared in The Daily Review on February 15, 1961:

'A STREET WORK DELAY ATTACKED

'Another of Hayward's street paving jobs has produced a headache, both for Public Works Dept. engineers and residents along A Street east of Second Street.

'Public Works Director Edward Phillips acknowledged last night that the contractor has fallen behind schedule and has been warned that the city may assess liquidated damages for his tardiness.

'Councilman Vern Blichfeldt raised the question of delay on the job on behalf of A Street residents who have had to contend with a torn up street since last fall. 'Contractor on the project is Williams Bros., Union City, which received the contract with a bid of $80,006, some 24 percent below the city's estimate of more than $107,000.

'The city's problems are reminiscent of an earlier situation on Tennyson Road, where a cheaply bid job dragged on for months past the original target date for its completion.

'While the city's project has languished, the county has finished widening A Street between the city limits and Grove Way, including a four-land [sic] bridge over San Lorenzo Creek. The two jobs started at about the same time.'

On February 16, 1961, Irving Williams wrote a letter to The Daily Review notifying defendants of the alleged libelous publication and demanding a correction. ³ Defendants refused to print a retraction, whereupon plaintiffs brought the instant libel action in which they sought to recover $100,000 general damages, $15,000 special damages, and $10,000 exemplary damages.

All of plaintiffs' assignments of error on appeal deal with the instructions which the trial court gave to the jury. These assignments of error deal not only with the substance of the instructions relating to the meaning of the alleged libel and the issue of privilege, but also with the respective function and role of the court and jury in the determination of these issues.

Instructions Relating to Whether the Publication was Defamatory

Plaintiffs contend initially that the trial court should itself have determined that the publication was libelous as a matter of law or, at least, libelous on its face and should have so instructed the jury. Because of the complexity of the law in the area of libel and the diversity of meaning to which some of the relevant terms are susceptible, we precede our discussion of this contention with a general discussion of the principles of law which govern in this area.

Libel is defined in Civil Code section 45 ⁴ as follows: 'Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.'

An important distinction is made in California between defamatory language which is libelous on its face and that which is not. This distinction is recognized by a 1945 statutory enactment (§ 45a) which is a codification of a rule long in force in this state. (See Tonini v. Cevasco, 114 Cal. 266, 271, 46 P. 103; Schomberg v. Walker, 132 Cal. 224, 227-228, 64 P. 290; MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 548-549, 343 P.2d 36; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 539, 186 P.2d 737.) Section 45a provides as follows: 'A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.' ⁵

It should be here noted that language may be libelous on its face even though it is susceptible of an innocent interpretation. As stated by the Supreme Court in MacLeod: 'The test is whether a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts. If it does, 'whether the charge be directly made or merely implied, the publication, without averment, colloquium, or innuendo, will in itself constitute a libel.' The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense.' (52 Cal.2d p. 549, 343 P.2d p. 43)

Whether a publication is libelous on its face, or, as sometimes referred to by the cases, 'libelous per se,' is a question of law. (Howard v. Southern Cal. etc. Newspapers, 95 Cal.App.2d 580, 584, 213 P.2d 399; Freeman v. Mills, 97 Cal.App.2d 161, 165-166, 217 P.2d 687; Mercado v. Hoefler, 190 Cal.App.2d 12, 21, 11 Cal.Rptr. 787.) Where there is an ambiguity as to what the words mean, semantically, the court finding two meanings reasonably possible, one derogatory and the other not, the law hypothesizes a single readership mentality and the inference by the entirety of that readership of only one of the two meanings. (Herrmann v. Newark Morning Ledger Co., 49 N.J.Super. 551, 140 A.2d 529, 530.) Accordingly, when a court determines that certain language is reasonably susceptible on its face to a defamatory meaning but that the language is also susceptible of an innocent interpretation, the court decides, in the first instance, that the language is actionable per se, and it then becomes the jury's function from the evidence to determine which of the two potential meanings was drawn by the readership. (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d p. 546, 343 P.2d 36; Maidman v. Jewish Publications, Inc., 54 Cal.2d 643, 651, 7 Cal.Rptr. 617, 355 P.2d 265, 87 A.L.R.2d 439; Herrmann v. Newark Morning Ledger Co., supra, 140 A.2d p. 530.) It is only when the language is susceptible solely of a defamatory meaning, and it is not possible for a jury to determine that the publication was used and understood in a nondefamatory way, that it would be proper for a trial court to resolve the issue of libel (aside from the issues of truth and privilege) in favor of a plaintiff without submitting this issue to the jury or, in other words, to determine that the publication was libelous as a matter of law. (See Maher v....