Opinion
3-20-1950
PRIDONOFF v. BALOKOVICH et al. Civ. 17397.
Paul Barksdale d'Orr and B. E. Ahlport, Los Angeles, for appellant. Edward Mosk, Hollywood, for respondents.
PRIDONOFF
v.
BALOKOVICH et al.
March 20, 1950.
Rehearing Denied April 6, 1950.
Hearing Denied May 18, 1950.
Paul Barksdale d'Orr and B. E. Ahlport, Los Angeles, for appellant.
Edward Mosk, Hollywood, for respondents.
MOORE, Presiding Justice.
Appeal from judgment denying recovery for libel pursuant to order sustaining demurrer to the third amended complaint without leave to amend.
The writing allegedly published by respondents accused appellant of having been apprehended in Belgrade in spying upon the Yugoslav government while he was a member of the American Embassy; the Yugoslav government requested his recall and he was ordered back to the United States; he thereupon wrote articles violently attacking the Yugoslav government, intimating that if the Yugoslavs would revolt against their government America would help them; the articles were mimeographed both in English and Serbo-Croatian and distributed through and American reading room in Belgrade where respondents read them.
The complaint admits that plaintiff was 'one of the American Embassy at Belgrade' but declares that in all other respects the publication was false and was published by respondents in Narodni Glasnik, a daily newspaper, through evil motive, malice and ill-will toward plaintiff, and 'with intent and design to injure, disgrace and defame him and to bring him into public discredit as a man and in his occupation as a consulting engineer and a writer and lecturer on economic subjects, and to cause the public to hold plaintiff in contempt and ridicule.' The pleading alleges that the publication accomplished its designs, 'caused him to be shunned and avoided and to be injured in his occupation and in his * * * reputation' to his general damage in the sum of $100,000. In a second count the complaint alleges innuendo and special damages in the sum of $5,000.
'Libel is a false and unprivileged publication by writing, * * * 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.' Civ.Code, sec. 45. Any language is libelous if upon its face it has a natural tendency to injure a person's reputation, either in a general way or with respect to his occupation. Bates v. Campbell, 213 Cal. 438, 441, 2 P.2d 383; Stevens v. Snow, 191 Cal. 58, 62, 214 P. 968. In determining whether a publication is libelous it is to be measured not by its effect when subjected to the critical analysis of a trained legal mind but by its probable effect upon the mind of the average reader. The publisher is liable for what he has insinuated as well as for his explicit statements. His language will be regarded not only with reference to the actual words employed, but according to the sense and meaning under all the circumstances of the publication. And such significance will be attached to the language as it may fairly be adjudged to have conveyed. In evaluating the publication the court will place itself in the situation of the reader to whom it is addressed and then determine the sense or meaning of the document according to its natural and popular construction. Bates v. Campbell, supra, 213 Cal. 441, 2 P.2d 383.
To be libelous it is not essential that a false publication declare a crime to have been committed. Stevens v. Snow, 191 Cal. 58, 62, 214 P. 968. For illustration, falsely charging a person with a violation of confidence reposed in him or with treachery to his associates is libelous per se. Dethlefsen v. Stull, 86 Cal.App.2d 499, 501, 195 P.5d 56. The requirements of the definition have been met if the publication 'exposes' a person to ridicule, 'hatred, contempt, or obloquy.' If it is false and if it paints the plaintiff in such colors as to make him despised and hated by others; or if it presents him as an object of contempt, i. e., greatly reduced in mental and moral stature or as one whose conduct has been grossly at variance from the standards adhered to by the reader or whose behavior was inimical to the family, tribe or clan of the reader; or if it is calculated to make the plaintiff ridiculous to those who had known him favorably or with whom he had been associated on a friendly basis; or if it presents plaintiff as one who deserves censure or reproach, or exposes him to obloquy; if it accomplishes any one of these ends it is a libel. Tonini v. Cevasco, 114 Cal. 266, 272, 46 P. 103.
In view of the foregoing principles and doctrines we turn to a consideration of appellant and of the article alleged to have been published of and concerning him. He is an educated man with some attainments superior to those of his average fellow citizen. He is evidently of Yugoslavic antecedents and naturally operates among the people of that ancestry. While life in America infuses into the consciousness of every immigrant and his progeny that his rights are as great in extent, and protected as fully, as those of other strains, still the culture of those of the same origin and of a common sentiment and language induces them to associate together.
Prior to the alleged publication appellant had been an attache in the embassy of the United States at Belgrade and obviously was so employed by reason of his skill and learning in the field of economics. His 'functions, employment and service were of an economic and commercial nature.' Such position was nonpolitical and in no respect had to do with espionage on behalf of his own government nor did it oblige him to spy upon the activities of the Yugoslavs on any account. But after appellant had honorably served a season beyond the seas, returned to his own home and resumed his normal life among his people, the malice and ill-will of respondents burst into song. That their intention was to bring appellant into public discredit and to injure him in his occupation is patent in the words chosen to rebuke him before the readers of Narodni Glasnik. 'Caught carrying on flagrant espionage activities' has no innocent connotations. For an American in any station to be 'caught' by the authorities of Yugoslavia implies his having committed some represensible act. But here is an American holding an important official position whose primary function had been to engender sentiments of peace and friendship among the inhabitants of the ancient capital. By this admittedly false article he is reduced from a position of honor to one of cheap notoriety at home and of disgrace abroad. Although he had engaged in peaceful and friendly intercourse among the citizens of Belgrade, respondents would have his fellow countrymen believe that he was possessed of inferior judgment; that he would abandon his office in the American Embassy and forthwith associate with the topmost agents of the government as a spy. Not a modest spy, but so proud of his adventure that his conduct was openly scandalous. According to the authors of the publication, what was the result of his espionage activities? He would not be tolerated. The Yugoslav government looked upon him with disdain. He was frowned upon as a visiting viper to a nation that had been kind and hospitable to him and they demanded his recall. But did they let it rest with the request of the eastern government? By no means. They put upon him the seal of disapprobation by the government of the United States. He was recalled. To make appellant especially loathsome to the Yugoslavic peoples of America they make it appear that he had become so hostile to the little Adriatic republic that he commenced a compaign of propaganda by writing a series of articles, to which he gave wide circulation, attacking the government of that country and assuring its people that their revolt would be succored by the American Government. And to convince their readers of the presistent hostility of appellant, they declare that his articles were printed in the Serbo-Croatian tongue and distributed and read by the people of Belgrade. The declaration in a printed article of vast circulation that the government of the United States has withdrawn its protective arm from the mantle of a diplomatic agent can have no significance other than that the latter is so dishonest or so stupid as not to be trusted with an important mission on behalf of the Washington government.
Respondents contend that the article has an innocent connotation and is therefore not actionable. If the court construes it in the same sense as was done by the average person of Yugoslavian ancestry, very ittle of innocency will be found, but evil only. Imagine the feelings of a person of Serbian, Croat or Yugoslav antecedents who although an American by adoption or brith, cherishes the welfare of the land of his forebears. On reading that one of kindred ties and sympathies while in the diplomatic service has made use of his high office to spy openly and notoriously upon the governmental activities of Yugoslavia, his indignation swells into resentment. He reads that the unfaithful servant is recalled by the United States at the request of Yugoslavia. He then becomes prejudiced against the former diplomat. He reads that the misguided former official attacked the government of Yugoslavia by writing denunciatory propaganda and by giving it wide circulation in America and in Belgrade. His feelings then become hate toward the accused. But give the article a reasonably intelligent interpretation by the average reader of Mayflower ancestry and he is at once convinced that the United States has a most successful method of selecting moronic and officious intermeddlers to promote feelings of good will in foreign lands. Who could condone the act of a diplomatist who would engage in social activities with the people of Yugoslavia, as any member of the embassy there may be expected to do, in promoting friendship for America, and go thence to participate in acts of espionage? Such reader would conclude from the story that such adventurer had been 'caught,' that he was either in flight as a fugitive or was apprehended while in the very act of spying upon the doings of his host. And the fact that he was recalled by the American government was in effect a judgment that the government of the United States had considered that appellant had overstepped the bounds of propriety and had violated the trust reposed in him. In short, he was either foolish or unfaithful. This was actionable per se. Dethlefsen v. Stull, supra, 86 Cal.App.2d 501, 195 P.2d 56. It made him appear shallow and superficial and deservedly the object of contempt and ridicule. If his espionage was improper and disqualified him to represent his country and if upon his return he undertook to foment a revolution in Yugoslavia thereby involving the people and the government of the United States, he was a character to be abhorred. Any of the foregoing inferences would be reasonable deductions from the published article. No reasonably intelligent person can read the publication without concluding therefrom that Pridonoff was not honorable toward the Yugoslav government and had been 'guilty of such reprehensible misconduct as should deter people from trusting him in his occupation.' See Tonini v. Cevasco, 114 Cal. 266, 272, 46 P. 103, 105.
In conducting a career as lecturer and consulting engineer it is of paramount importance that a person retain a reputation of the highest honor, integrity and good judgment. These virtues in appellant were liberally aspersed by the pen and publication of respondents. By the document some people will be dissuaded from patronizing appellant or from attending his lectures.
To be employed in what is euphemistically called the intelligence service, but in common perlance the spy system, may be deemed an honor because of the assumption that only those possessing more than an average degree of intelligence and sagacity are qualified for such labors. The error in such assumption will readily appear. One who is engaged in the diplomatic service is openly known as the representative of his government and is in constant contact with the officials of the government to which he is accredited, while he who operates in the intelligence service--acting as a spy--does not work openly. His activities and his methods are secret. To be branded as having been so engaged would destroy forever plaintiff's chances of service as a diplomat. A charge that while accredited and serving as an attache of our embassy in a foreign country he had engaged in spying would be sufficient cause for any other country to refuse to receive him. Such an accusation, if false, is actionable libel.
Respondents attempt to abridge the libelous character of the publication by restricting it to the reference to appellant's fomenting a revolt against the Yugoslav government. The offensiveness of the article is but slightly augmented by the charge of appellant's advocating a revolution against the government of Tito. But if that feature stood alone it would indicate to all Yugoslavs appellant's aggressive effort to embroil Yugoslavia in a revolution to overthrow its government, and to that extent it would be a libel upon appellant. Such behavior on the part of any American citizen is an impeachment of his sound judgment and his good morals. In fact, it is a crime against the federal statutes to stir up a revolution against a friendly power. The article of respondents was therefore, in that respect, a libel.
But respondents invoke the decision of Mellen v. Times-Mirror Company, 167 Cal. 587, 140 P. 277, 278, Ann.Cas.1915C, 766, as a refutation of appellant's thesis. The Times published that Mellen had on shipboard in a Pacific port a cargo of munitions headed for the then current Mexican insurrectos. In his action Mellen maintained that the publication had charged him with the crime of violating the federal neutrality laws. The court rejected his contention with the pronouncement that the crime of violating neutrality laws 'does not necessarily involve such elements as would impute to a person deemed guilty thereof anything infamous, ridiculous or disgraceful * * * If is thoroughly settled that it is not an offense against the neutrality laws of the United States to transport arms, ammunition, and munitions of war from this country to any foreign country * * * Section 5286 [18 U.S.C.A. § 960] * * * does not prohibit the mere engaging in transportation of arms or ammunition as a commercial venture, nor peaceable aid rendered to either belligerent, so long as this aid arises indirectly only through commercial dealings.' Not only was Mellen innocent of crime but he was a private citizen, engaged in transacting private affairs. He had done nothing that was calculated to bring him into disagrace or censure or contempt or ridicule or to be shunned but on the contrary it was fair publicity calculated to increase his sales to Mexican insurgents.
While no crime was charged against appellant by the publication yet by a reasonable interpretation of the article he was libeled. He was characterized by words whose sinister significance cannot be doubted. He was presented as a person without sense of the proprieties, without respect for the common amenities, recalled from a diplomatic post by his government and persistent in his attacks upon a government friendly to the United States. So presented and so characterized he was necessarily injured in his reputation generally and in his occupation in particular.
In support of their contention that if a publication has a connotation of innocency it is not libelous they cite Peabody v. Barham, 52 Cal.App.2d 581, 126 P.2d 668, 669. Concerning the plaintiff in that action the alleged publication had announced that "Eddie Peabody's divorcing wife * * * is also his aunt." In holding that the article is susceptible of an innocent interpretation, the court had the advantage of (1) its judicial knowledge that a man rarely marries the widow of his consanguineal uncle and never his consanguineal aunt; (2) also of the presumptions that in any transaction (a) the law has been obeyed; (b) private transactions have been regular; (c) a person is innocent of crime. Code Civ.Proc., sec. 1963. In the case at bar there is no presumption that Pridonoff was pursuing his diplomatic duty to the government of the United States in flagrantly spying upon the Yugoslav government, or that there was honor in the fact that Yugoslavia requested his recall or in his recall by the United States. There was no such established significance in giving wide circulation to published articles attacking the Yugoslavian government that the publication of that fact would lend charm to the author thereof or cause him to be kindly regarded by the readers of a Serbo-Slavian perodical. What could be emotional reaction of those of Yugoslav antecedents other than disgust and contempt to read of an esteemed American contemporary that he had encouraged the natives of Yugoslavia to revolt against its government?
Judgment reversed with instructions to overrule the demurrer.
WILSON, J., concurs.
McCOMB, J., dissents. --------------- * Subsequent opinion 223 P.2d 854. 1 In paragraph IV of complaint. 2 'I. That plaintiff is, and was at all of the times herein mentioned, a citizen of the County of Los Angeles, State of California, carrying on the occupation of consulting engineer, and of a writer and lecturer on economic subjects, in said County and State and other parts of the American Union, and that he enjoyed a good reputation in such occupation. 'II. That prior to the events hereinafter alleged, plaintiff had been an economic attache in the United States Embassy, at Belgrade, Yugoslavia, and had served the government of the United States, in the functions assigned to him as such employee, at that capital, and that such functions, employment and service were of an economic and commercial nature entirely, and wholly unrelated to, and did not embrace, in any sense or manner, espionage or spying activities, but that all of plaintiff's functions, employment and service were nonpolitical, and that all of said facts and the nature of plaintiff's functions, employment and service [were] known to defendants. 'III. That defendant Joyce Borden Balokovich (sometimes spelled Balokovic) is a native-born citizen of the United States, and is married to defendant Zlatko Balokovich (sometimes spelled Balokovic), who is a native of the country now known as Yugoslavia, but plaintiff is advised and believes and therefore alleges that he is a naturalized citizen of the United States. 'IV. That on or about the 6th day of March, 1947, the defendants together composed, wrote and caused to be printed and published, of and concerning the plaintiff, under their joint names and respective photographs, in a daily newspaper known as Narodni Glasnik, and distributed to, and which was read by, large numbers of people in the County of Los Angeles, and in other parts of the State of California, and in numerous other cities and counties throughout the United States, the following matter: "Eric Pridonoff, while one of the American Embassy in Belgrade, was caught carrying on flagrant espionage activities. The Yugoslav government requested his recall and we recalled him. When Pridonoff got back to the United States, he wrote a series of articles for the Hearst press violently attacking the Yugoslav government and intimating clearly that if the Yugoslav people would revolt against their government, we would help them. These articles were mimeographed both in English and Serbo-Croatian, and distributed through the American Reading Room in Belgrade. We read them ourselves while we were there.' 'V. That said publication, except the statement that plaintiff was 'one of the American Embassy at Belgrade,' was false, and that defendants, through evil motive and malice, and ill-will toward the plaintiff, wilfully, wickedly, wrongfully, maliciously, and with intent and design to injure, disgrace and defame this plaintiff, and to bring him into public discredit as a man, and in his occupation as a consulting engineer and a writer and lecturer on economic subjects, and to cause the public to hold plaintiff in contempt and ridicule, published in said newspaper, of and concerning the plaintiff, and of and concerning him in his said occupation, the said false, libelous, malicious and defamatory article. 'VI. That said publication did expose plaintiff to, and bring upon him, hatred, contempt, ridicule and obloquy, and caused him to be shunned and avoided, and to be injured in his occupation aforesaid, and in his good name and reputation; all to his general damage in the sum of $100,000. 'VII. That said publication was made by defendants with actual malice, motivated by the fact that, as plaintiff alleges, both of the defendants were and are disloyal to the democratic principles and political system of the government of the United States, and both of them adhere to the totalitarian principles and system of Communism, which at said time prevailed, and still prevail, in Yugoslavia, and which the defendants desire to see prevail in the United States, and that plaintiff disliked and distrusted the principles and system of Communism, and was and is devoted to the principles and system of government of the United States, all of which was known to the defendants, and that they were animated by hatred for the plaintiff because thereof, and because of such ill-will maliciously made said publication, and sought to bring upon, and brought upon, plaintiff hatred, contempt, obloquy and injury, as aforesaid. 'For a second Cause of action Plaintiff alleges: 'He adopts the matters and things alleged in paragraphs I, II, III, IV, V, VI and VII, of the First Cause of Action, with the same force and effect as if here repeated. 'VIII. That said publication was intended by defendants to import, and the language thereof was understood by the persons reading said publication to mean, that while plaintiff was an employee and attache of and in an Embassy of the United States, under the Foreign Service of the State Department of the United States, accredited to a foreign country, to wit, Yugoslavia, which was at peace with the United States, and employed and sent to the capital of Yugoslavia upon a diplomatic mission, and for economic and commercial purposes, and in the interest of amicable relations between said foreign government and the government of the United States, he violated the trust of his employment, and acted as a spy, and engaged in espionage activities, in said foreign country, against said foreign government, and was by reason thereof an unfaithful servant of the government of the United States, and that because of such improper conduct he was recalled from his station by the government of the United States, and that after his return to the United States he had pursued said previous activities and attempted to encourage or foment rebellion in a foreign country, at peace with the United States, to the government of which he had been accredited, and had indicated that if the Yugoslav people revolted against the government of Yugoslavia, the United States, notwithstanding that its Government was on terms of peace and amity with Yugoslavia, would aid the revolutionists. 'IX. Plaintiff is informed and believes and therefore alleges that as a direct and proximate result of said false and malicious publication, and its consequent injury to his reputation as a man, and as a consulting engineer, he suffered special damages in this, that he lost employment, between July 1, 1947, and February 1, 1948, as an engineer with Persons Aerojet Company, of Los Angeles, California, and compensation of $5,000.00; that he has suffered and will continue to suffer special damages, in respect to his occupation as an engineer, from loss of business not yet ascertained, but which plaintiff will ask leave of court to show by amendment and proof. 'Wherefore, plaintiff prays judgment against the defendants and each of them on its First Cause of Action, in the sum of $100,000.00 as compensatory damages, and by reason of defendants' actual malice in said libelous publication the further sum of $100,000.00 as exemplary damages; and/or on the Second Cause of Action, for $100,000.00 as compensatory, $5,000.00 as special, and $100,000.00 as exemplary damages; and for costs and all other rlief provided in such cases.' 3 Admitted by the demurrer.