Mason v. Lyl Productions

McCOMB, J.

Defendant appeals from a judgment awarding plaintiff $2,800 damages in an action for wrongful discharge of a child actress.

Facts-. By a written agreement, dated January 2, 1962, defendant Lyl Productions (hereinafter referred to as “Lyl”) employed plaintiff Portland Mason (hereinafter referred to as “Portland”), who at that time was 13 years old, to render, at Lyl’s option, services as an actress to portray the role of “Marnie” in a weekly television series entitled “The New Loretta Young Show” and subtitled “Christine’s Children.”¹ It was stipulated at trial that the agreement was effective and controlled the rights and duties of both parties.

Under the agreement, Portland was required to abide by the time schedule • of the studio and to render services as designated by the studio. Production costs were approximately $12,000 per day," indicative of a need for strict compliance with the working schedule requirements.

Portland was also obligated to furnish all modem wardrobe and wearing apparel reasonably necessary for the portrayal of her role, to the extent she possessed the same.

On July 23, 1962, the day prior to her discharge, Portland brought to the studio a large selection from her extensive wardrobe, but each item was rejected. The following day, she brought three more dresses, but they were likewise rejected shortly after the lunch break began.

Although Lyl’s production report showed that the lunch break on July 24, 1962, the day of Portland’s discharge, was from 12:30 to 1:30 p.m., John London, the producer, testified that it was called around 12:15 that day. It was uncontradicted, however, that the break was one hour in length.

Portland testified that immediately before the lunch break was called, she tried on and exhibited to Loretta Young, Mrs. Cline (the wardrobe mistress), and Mr. London the three outfits brought that day and that when this task was completed, the lunch break had already started. Loretta Young, Mrs. Cline, Mr. London, and Miss Gower (a domestic servant of Mrs. Mason’s acting as a matron for Portland) testified that Portland tried on the clothes immediately after the lunch break was called.

Mr. London testified that after the rejection took place, he told Portland, in effect, that she should not worry and concern herself about the wardrobe differences, but should go to lunch. He then telephoned Portland’s mother to resolve the issue as to wardrobe. Mrs. Mason was reached by telephone at the Beverly Wilshire Hotel, where she was having lunch, about 12:45 p.m., according to her public relations representative, and she agreed to appear at the studio with a suitable wardrobe at 4 p.m. After the call to Mrs. Mason, Mr. London went to the commissary for lunch.

While Mr. London was having lunch, Mrs. Mason talked with Portland over the telephone and became aware that the child was emotionally upset over the rejection. According to Mrs. Mason’s testimony, she then spoke with Miss Gower over the telephone and instructed her to take Portland home for lunch. Mrs. Mason further testified that at the time she instructed Miss Gower to take Portland home she did not know when the lunch break had been called or when afternoon rehearsals were scheduled to begin, although she knew the lunch break was taking place at the time of her call.

Miss Gower proceeded toward the parking lot to get the car and on the way met Mr. London returning from lunch. Mr. London testified that Miss Gower spoke first, informing him that Portland was upset and that Mrs. Mason had instructed her to bring the child home. According to his testimony, Miss Gower did not say she was taking Portland home “to lunch.” Miss Gower testified that Mr. London spoke first and asked where she was going; that she told him Mrs. Mason had asked her to bring Portland home during her lunch period; and that Mr. London asked her to wait until he talked with Loretta Young and then said, “Just forget about it, we will just recast it,” and asked Miss Gower not to mention it to Portland, but “to let her mother tell her.” Mr. London denied telling Miss Gower not to let Portland know she was being replaced. Mr. London placed this conversation with Miss Gower at a few minutes before 1 p.m.

Mr. London then went to Loretta Young’s dressing room, where it was decided that if Portland left the studio premises, she would be replaced. Mr. London fixed the time of this decision at around 1 o’clock, with rehearsals to start at around 1:15 p.m. Loretta Young fixed the time at “a little after 1 p.m., with rehearsals to start in five to ten minutes.”

Mr. London testified that he returned to Miss Gower, who was waiting, and told her, “If you leave the premises, if you leave the stage, we are going to have to replace Miss Mason.” Miss Gower replied, ‘ ‘ I am sorry, but I am taking orders from Mrs. Mason, and I have to leave the stage. I have to take her home.” Mr. London replied, “Well, then, we will have to replace her.” Miss Gower’s version of the conversation was that Mr. London gave her no choice in the matter but merely said they were recasting. Mr. London fixed the time of this conversation about 10 or 12 minutes after 1 p.m. Miss Gower and Portland left the studio immediately thereafter. Mr. London did not tell either Portland or Mrs. Mason that Portland was being replaced. Miss Gower, likewise, did not inform either of them of Mr. London’s statements about replacing Portland.

Portland testified that the travel time between her home and the studio was about 20 minutes, but more likely to be 15 minutes “judging most days, the way I raced to the studio.” She further testified that on July 24 she arrived home ‘ ‘ about a quarter to 1:00. ... I looked at the clock when I got home. ’ ’ Her mother arrived 10 to 15 minutes later.

After Portland left the studio, Mr. London went to the commissary and told Mr. Murtón, the casting director, to obtain a replacement for Portland. Mr. Murtón fixed the time of this conversation at about 1:15 p.m. He contacted Celia Kay’s agent, and Celia arrived at the studio about 2:15 p.m. Portland was not at the studio when rehearsals were scheduled to begin.

About 2:30 pm., Robert Shapiro, Portland’s agent, arrived at the studio. Around 1:15 pm., Mr. London had telephoned him and asked that he be present when Mrs. Mason came to the studio with some wardrobe for Portland, in the event there were any problems. When Mr. Shapiro arrived, he was informed that Portland had been replaced. He telephoned Mrs. Mason’s business manager, Mr. Fitzgerald, about 2:30 p.m. and so informed him, and Mr. Fitzgerald relayed the message to Mrs. Mason at the Beverly Wilshire Hotel. In one place in her testimony, Mrs. Mason fixed the time of this call at about 2:30 p.m. and in another place at between 12:30 p.m. and 1 p.m. When Mrs. Mason arrived home, she told Portland that she had been replaced.

Mr. Fitzgerald telephoned the studio at 4 p.m. to confirm the replacement and was advised by Mr. London that Portland was replaced “because she left the stage without permission.” Celia Kay was thereafter employed to play the role intended for Portland.

Lyl’s production report for the day of Portland’s discharge shows: “Portland Mason’s mother requested that she come home at 12:30 P.M. This was reported to the producer and she was replaced in the show. ’ ’

The parties stipulated that no breach of contract existed by reason of the furnishing or nonfumishing of wardrobe required by the contract, and the trial court so found.

Based on the evidence recited above, the trial court also found that Portland, then a minor under 14 years of age, was emotionally upset as the result of a wardrobe dispute with Lyl; that her mother was aware of the dispute and the emotional condition of her daughter; that Portland was told, in effect, by Mr. London, an authorized agent of Lyl, that everything would be all right and that she should go to lunch; that it was decided by Lyl that if Portland left the set for lunch, she would be replaced; that this order was not effectively communicated to Portland or her mother or any other authorized agent prior to the time she left the set; that Portland left the set under these circumstances; and that during the lunch hour a unilateral decision was made by Lyl to replace her.

Included in the conclusions of law adopted by the trial court (all of which conclusions were incorporated by reference in the findings of fact), was one reading, as follows: “Productions, by their decision to replace Portland Mason during the lunch hour and in that they were dealing with a minor who had cause to be emotionally upset and was in fact emotionally upset concerning the wardrobe incident, under said circumstances of July 23, 1962 and July 24, 1962, acted unreasonably in not allowing Portland to go home during the lunch hour in order that she might regain her composure, resolve the wardrobe dispute and return to the studio .without suffering the penalty of being replaced in the seriés and having her contract unilaterally terminated.¹ ’

Question: Does the evidence sustain the findings and judgment of the trial court ?

Yes. Regardless of whether Lyl’s order for Portland not to leave the studio was communicated to her or her authorized agent prior to the time she left, Portland’s act in leaving would not constitute grounds for terminating the contract if the order was an unreasonable one. In this respect, the trial court found that the order was unreasonable under the circumstances.

With respect to the determination of the reasonableness of such an order, the following rule set forth in May v. New York Motion Picture Corp., 45 Cal.App. 396, 404-405 [4] [187 P. 785], is pertinent: “Where the reasonableness of the master’s order depends upon undisputed facts, and the inferences from the facts found or admitted all point one way, the question as to the reasonableness of the order or rule is one of law for the court and not a question of fact for the jury. Where, however, the reasonableness of the order does not rest wholly upon undisputed facts, or its reasonableness is not so apparent that but one inference can reasonably be deduced from the proved or admitted facts, it is for the jury [in this case, the trial judge as the trier of fact] to determine whether' the order is reasonable or not. ’ ’

In the present case, as shown above, the evidence was conflicting, and the trial court determined, upon an abundance of evidence, that the order forbidding Portland to leave the studio during the lunch break was unreasonable under the circumstances. Moreover, the evidence is susceptible to an inference that had Portland known she would be discharged if she left the premises, she would not have departed.

In Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 72 [3] [64 Cal.Rptr. 785, 435 P.2d 553], this court said:‘ ‘ ‘ ‘ ‘ ‘ In reviewing the evidence ... all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. . . . When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ ’’ ’ ’’

Accordingly, since the judgment is substantially and properly supported by the evidence, the findings of fact, and the conclusions of law, it cannot be disturbed on appeal.

The judgment is affirmed.

Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

1 The language quoted by the majority is conclusion of law No. 3. However as the majority note, at the end of the findings of fact appears the following:. “Each and every conclusion of law set forth hereinbelow is incorporated herein by this reference a.s though set forth in full as a conclusion [sip], .of; fact. ’ ’ Apparently the majority eschew any dis'tinetion between finding of fact and conclusion of law in respect to the quoted matter.