Corrigan v. Macloon , 22 F.2d 520 ( 1927 )

HUNT, Circuit Judge

(after stating the facts as above). We cannot see that tho telegram set out in the first cause of action is libelous, or of a libelous character. Tho sender of the message was one of the managers of a corporation which had control and management of the play ref:erred to.' In the exercise of his authority he telegraphed cancellation of the performance of the play set for a named date. He gave illness — whether of himself or of plaintiff is. not important— as the reason for taking that action. The message made no disparaging mention of plaintiff, directly or by implication; nor was any language used which in any way exposed plaintiff to contempt, ridicule, or obloquy, or tended to injure him in his profession as an actor. If, by the cancellation of the contract tor performance at Topeka, plaintiff was financially damaged, a right of action may exist, but not in libel. Cal. C. C. § 45.

The letter pleaded in the second cause of action is separable into two parts. Alter the introductory paragraph, which merely states that the Equity Association desired a written answer to its telephone inquiry on behalf of the plaintiff, then playing in Denver, defendant Lillian Maeloon states that she telegraphed for information. The next paragraph is the answer to that telegram by defendants’ company manager. The fourth paragraph is a statement by the writer of the letter that she assumes that the actors had traveled in cars of their own choice, and that tho company manager felt that plaintiff, being the star, would have been slighted if no Pullman reservation had been made for him.

As the defendant writer of the letter and the Equity Association which received it, had a common interest in any difference that may have arisen between the actor and his employer, and as there is nothing- in the paragraphs referred to evidencing malice on the part of the writer, that part of the communication was privileged, and if the letter had ended there, plaintiff would have been properly put. out of court. Ashcroft v. Hammond, 197 N. Y. 488, 90 N. E. 1117.

But in the second part of the letter the writer voluntarily went beyond the question asked and introduced matters not germane to the occasion and which tended to injure plaintiff in his profession as an actor. For an employer of an actor to write and publish of him that he is a notorious trouble maker, contemptible, and that a way has been found to rid the employers of further annoyance from the actor, that he has been furious and unruly to a degree, and that the employing company of which she is a member will close, and give the actor an opportunity to find another “terrible management,” is, we think, to give persons unacquainted with the actor fairly to understand that he is unfavorably known 'as one who creates annoyances, is refractory, deserving of scorn, and is of a turbulent and angry temper. It follows that the irrelevant and foreign matter in the communication is not privileged. Gatley on Libel and Slander, p. 275; Adam v. Ward [1917] A. C. 249. In our opinion the language used is included in the California statutory definition of libel (section 45, C. C. C.), which is: “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 he shunned or avoided, or which has a tendency to injure him in his occupation.” From libel per se, damage is implied by law. Tonini v. Cevasco, 114 Cal. 266, 46 P. 103.

. The judgment is reversed, and the cause is remanded, with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.