Opinion
11-13-1950
PRIDONOFF v. BALOKOVICH et al. L. A. 21512.
Paul Barksdale D'Orr and B. E. Ahlport, Los Angeles, for appellant. Edward Mosk, Hollywood, Pacht, Tannenbaum & Ross, Clore Warne and Stuart Kadison, all of Beverly Hills, for respondents.
PRIDONOFF
v.
BALOKOVICH et al.
Nov. 13, 1950.
Rehearing Granted Dec. 13, 1950. *
Paul Barksdale D'Orr and B. E. Ahlport, Los Angeles, for appellant.
Edward Mosk, Hollywood, Pacht, Tannenbaum & Ross, Clore Warne and Stuart Kadison, all of Beverly Hills, for respondents.
TRAYNOR, Justice.
Plaintiff appeals from a judgment of dismissal of his action for libel, entered pursuant to an order sustaining without leave to amend defendants' demurrer to his third amended complaint.
Plaintiff alleged in his complaint that 'defendants together composed, wrote and caused to be printed and published, of and concerning the plaintiff, 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 numerous other cities and counties throughout the United States, the following matter:
"Eric Pridonoff, while one of the American Embassy in Belgrade, was caught crrrying 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."
In the first count of his complaint plaintiff alleged that defendants wrote and published the allegedly libelous article, that all the statements herein, with the exception of the statement that plaintiff was a member of the American Embassy, were false, that defendants knew the statements were false and caused their publication out of malice and ill will toward plaintiff with intention to injure, disgrace, and defame him, and that as a result of the publication of the statements plaintiff suffered general damages in the amount of $100,000. In the second count plaintiff alleged that because of certain circumstances the statements were given a particularly defamatory interpretation by the persons who read them. It was further alleged that 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 Parsons Aerojet Company, of Los Angeles, California and compensation $5,000.' Plaintiff prayed for judgment in the amounts of $100,000 general damages, $100,000 exemplary damages, and $5,000 special damages.
Libel is defined as '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.' Civil Code § 45. Defendants contend that the article was not libelous in describing plaintiff as being engaged in espionage for the United States; that it is proper and praiseworthy for a person to be a spy for his own country. Had the article said only that plaintiff was engaged in espionage for the United States, defendants' contention might have merit. The article went further, however. It described plaintiff as one of the American Embassy, a person who should not engage in espionage, and charged that nevertheless he engaged in such flagrant espionage activity that his recall was requested and that the United States honored the request. The publication thus carried the clear implication that plaintiff was unfit for his job as a representative of the United States serving abroad. It had a direct tendency to injure him in his occupation and was accordingly libelous.
Plaintiff cannot recover general or exemplary damages, however. Civil Code section 48a provides that 'In any action for damages for the publication of a libel in a newspaper * * * plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided.' The present action is for damages for the publication of a libel in a newspaper, and plaintiff does not allege a demand for the publication of a correction or the refusal thereof. Section 48a therefore precludes plaintiff's recovery of general or exemplary damages arising from the publication of the alleged libel. Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 216 P.2d 825. Plaintiff does allege, however, that he has suffered special damages as a result of the publication of the alleged libel. Section 48a permits their recovery even though no correction has been demanded or refused. The general demurrer was therefore properly sustained only if the allegation of special damages is insufficient to sustain a cause of action therefor.
Special damages are 'all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other'. Civil Code § 48a. If special damages are claimed, as in the present case, for injury to the plaintiff's trade, profession, or occupation, the nature and extent of the loss must be specifically set forth. 'To prevent a surprise on the defendant, it is the general rule that the plaintiff must state in his complaint the particular damage which he has sustained, or he will not be permitted to give evidence of it'. Skaggs v. Wiley, 108 Cal.App. 429, 434, 292 P. 132, 134; Peabody v. Barham, 52 Cal.App.2d 581, 585, 126 P.2d 668; LeJeune v. General Petroleum Corp., 128 Cal.App. 404, 418-419, 18 P.2d 429. A general allegation of the loss of a prospective employment, sale, or profit will not suffice. Peabody v. Barham, supra; Wilson v. Dubois, 35 Minn. 471, 473-474, 29 N.W. 68; Denney v. Northwestern Credit Ass'n 55 Wash. 331, 333, 104 P. 769; De Witt v. Scarlett, 113 Md. 47, 51-52, 77 A. 271; Tower v. Crosby, 214 App.Div. 392, 212 N.Y.S. 219, 220; Pollard v. Lyon, 91 U.S. 225, 237, 23 L.Ed. 308.
Plaintiff's allegation of special damage is sufficiently specific. He alleges that as a result of the publication of the alleged libel he has lost employment with a specific employer, the Parsons Aerojet Company, for a specified period, to his damage in the amount of $5,000. Defendants are thereby informed of the exact nature of the claim of special damages and afforded an opportunity to prepare a defense against it. That is all that is required of the allegation.
Defendants contend, however, that the allegation is insufficient for the reason that the special damages are alleged only on information and belief. Plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true. Code of Civil Procedure § 446; Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 206, 92 P. 184; North v. Cecil B. DeMille Productions, 2 Cal.2d 55, 58-59, 39 P.2d 199; Swars v. Council of City of Vallejo, 64 Cal.App.2d 858, 865, 149 P.2d 397; Thompson v. Sutton, 50 Cal.App.2d 272, 279, 122 P.2d 975. Plaintiff would ordinarily learn that he lost employment because of the libel from the declarations of others. It is therefore appropriate for him to allege such matters on information and belief. Campbell-Kawannanakoa v. Campbell, supra.
Hall v. James, 79 Cal.App. 433, 435-436, 249 P. 876, does not compel a contrary result. In that case the court held insufficient an allegation on information and belief of the amount of damages sustained by plaintiff as the result of defendant's breach of contract. The court recognized that matters that are not within the personal knowledge of the pleader may be alleged on information and belief, but stated that 'plaintiff is certainly in a position to know better than any informant the financial loss he sustained by reason of the breach of the contract.' Hall v. James, 79 Cal.App. at page 436, 249 P. at page 877 In the present case, the amount of financial loss plaintiff has sustained and the fact that the loss was caused by the libel are not necessarily within his personal knowledge, but may be ascertainable only from the declarations of others and may therefore be alleged on information and belief.
The judgment is reversed and the cause remanded with directions to overrule the demurrer and to allow defendants to answer.
GIBSON, C. J., and SHENK, EDMONDS, and SPENCE, JJ., concur.
CARTER, Justice (concurring).
I concur in the judgment of reversal, but I dissent from that portion of the majority opinion which holds that plaintiff cannot recover general or exemplary damages because he did not demand a correction or retraction pursuant to the provisions of § 48a of the Civil Code. It is my considered opinion that § 48a is unconstitutional. My views in this regard are expressed in my dissenting opinion in the case of Werner v. Southern California Associated Newspaper, 35 Cal.2d 121, 216 P.2d 825. Since the Supreme Court of the United States has granted certiorari, and has agreed to review the decision of the Supreme Court of California in this case, I do not think it should be relied upon as an authority in support of the position of the majority in the case at bar that plaintiff cannot recover general or exemplary damages because of the provisions of § 48a of the Civil Code.
Being of the opinion, therefore, that the complaint states a cause of action for special, general and exemplary damages, the judgment should be reversed with directions to the trial court to overrule the demurrer and allow the defendants to answer as to all the issues presented by the complaint.
SCHAUER, Justice (concurring).
I concur in the judgment of reversal. My views on the question of the constitutionality of § 48a of the Civil Code are stated in Werner v. Southern California Associated Newspapers (1950), 35 Cal.2d 121, 216 P.2d 825. --------------- * Subsequent opinion 228 P.2d 6.