Pridonoff v. Balokovich , 36 Cal. 2d 788 ( 1951 )

TRAYNOR, J.

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 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. ’ ’ ’

In the first count of his complaint plaintiff alleged that defendants wrote and published the allegedly libelous article, that all the statements therein, 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 der famatory 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.” (Civ. 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:

“In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.”

The plain language of the statute governs “any action for damages for the publication of a libel in a newspaper.” (Italics added.) Even though plaintiff’s action is for the publication of a libel in a newspaper, he contends that by virtue of the provision requiring service of the demand for correction on the publisher the statute applies only to the publisher and not to his employees, columnists, and other authors. (See Comer v. Louisville etc. Railroad Co., 151 Ala. 622 [44 So. 676, 677].) Since his action is against the authors of the alleged libel and not against the newspaper publisher he concludes that section 48a has no application. It does not follow, however, that because the person upon whom the notice to retract must be served is the publisher of the newspaper, the statute applies to him alone. Reporters, columnists, authors, critics, editors, and the publisher are all participants in newspaper publications. When error is made, however, it is the publisher who has power to make correction. In providing for the substitution of a retraction for general and exemplary damages it was reasonable, therefore, for the Legislature to provide that the notice should be served upon him. The retraction provides as adequate a substitute for general and exemplary damages in the case of a suit against the author as in one against the newspaper publisher himself. Since plaintiff does not allege a demand for the publication of a correction or the refusal thereof, section 48a precludes 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, 13 A.L.R.2d 252].)

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.” (Civ. 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]; 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, 59 Am.Rep. 335]; Denney v. Northwestern Credit Assn., 55 Wash. 331, 333 [104 P. 769, 25 L.R.A.N.S. 1021]; DeWitt 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 Civ. Proc., § 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-Kawannanahoa 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 contract.’' (Hall v. James, 79 Cal.App. at 436 [249 P. 876].) 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., Edmonds, J., and Spence, J., concurred.