pre-Bumett decision apparently applying section 48a to a weekly newspaper, without discussion about whether it was a “newspaper” within the meaning of section 48a
How later courts described this case
- pre-Bumett decision apparently applying section 48a to a weekly newspaper, without discussion about whether it was a “newspaper” within the meaning of section 48a
- "Comments, opinions and criticisms may be defamatory even though based upon true or privileged statements of fact.”
Written by the judges who cited it.
The opinion
McCOMB, J.—I dissent.
I believe the courts should apply the same rules to all litigants, regardless of their race, color or religion. In the present case the majority applies a rule to persons of the Jewish religion which would not be applied to those of the Christian religion. This is made evident by substituting in the editorial * *655 the words (1) Christian for B’nai B’rith and Jewish, (2) Christmas for Rosh Hashanah, (3) Easter for Yom Kippur, and (4) John Jones for Mr. Maidman. The editorial so worded would clearly not be libelous. It would read:
An “Important” Christian Interprets Christmas A trial was in progress in the Superior Court of the State of California, Department 5, in Glendale—before the Honorable Judge Boger A. Pfaff, entitled Levy v. Smith. A Jewish attorney was representing two Christian defendants, and a Jewish plaintiff was represented by attorney John Jones, who is the “Chairman of the Administrative Board of the Christian Beeord,” the house organ of thé Southern California Council of Christian Lodges.
The Jewish attorney, out of respect for his two Christian clients, asked Judge Pfaff if he could have a continuance for his Christian clients inasmuch as “tomorrow” was a Christian holiday, Christmas, and that his clients would like to observe the Christian holiday.
Judge Pfaff, knowing that John Jones is Christian, asked Mr. Jones if he had any objections. Whereupon Mr. John Jones, “Chairman of the Administrative Committee of the Christian Beeord,” gave the court this “profound” and “learned” discourse on the meaning and value of Christmas.
The following quotations are word for word from the reporter’s transcript:
“I have that same problem but out of the good book there is a provision which says on a joyous holiday such as *656 Christmas people may do a duty, and not do penance. The holiday where I think it is generally observed that we don’t observe our daily habits is—so far as duties are concerned—• is Easter, which is the holiday next spring, so if I can serve my client I have a duty which I think the good Lord. ...”
Then Mr. Jones let the court and all of his auditors know that he ought to know something about this matter of the proper observance of Christmas since he is the Chairman of the Administrative Board of the Christian Record, which is tantamount to “publisher.”
After Mr. Jones’ profound interpretation, i.e., that Christmas is a “joyous holiday,” Judge Pfaif refused a continuance and the case proceeded right through Christmas.
Of course, even your adolescent children know that Christmas is not a “joyous holiday”; that Christmas and Easter are the two most solemn holidays in the Christian year.
It is reasonable to presume that Judge Pfaff too was under the impression that Christmas is a solemn Christian holiday until he heard Mr. Jones’ garbled exposition on Christmas.
Isn’t it too bad that with the hundreds and hundreds of Christians in Christian lodges who know something about our Christian religion, that such an individual is put into a position where he is able to, with ostensible authority, make all of us Christians look ridiculous.
We wonder whether the thousands of members of Christian lodges who observe Christmas with solemnity will not simply enthrall over Mr. Jones’ speech hereinabove quoted.
The complaint, in my opinion, does not state a cause of action for libel. These rules are here applicable:
(1) 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 be shunned or avoided, or which has a tendency to injure him in his occupation. (Civ. Code, § 45.)
(2) It is not libelous to state that one has done a legal act even though strong epithets are used in describing the act. (Sullivan v. Warner Bros. Theatres, Inc., 42 Cal.App.2d 660, 663 [5] [ 109 P.2d 760 ] [hearing denied by the Supreme Court].)
(3) In actionable defamation it is necessary that there be defamation apparent from the words themselves, without the use of an innuendo altering their sense. {Emde v. San Joaquin *657 County etc. Council, 23 Cal.2d 146, 159 [7] [ 143 P.2d 20 , 150 A.L.R. 916 ].)
(4) There is no libel if the charge against plaintiff is true, irrespective of the wording used in making the charge. (Emde v. San Joaquin County etc. Council, supra at 160 [8] ; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 536 [ 186 P.2d 737 ] ; Glenn v. Gibson, 75 Cal.App.2d 649, 657 [1], 661 [6] [ 171 P.2d 118 ] ; McLaughlin v. Standard Acc. Ins. Co., 15 Cal. App.2d 558, 568 [4] [ 59 P.2d 631 ] [hearing denied by the Supreme Court].)
(5) Mere expressions of opinion or severe criticism are not libelous if they go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny even though they may reflect adversely upon the activities of an individual. (Howard v. Southern Cal. etc. Newspapers, 95 Cal.App.2d 580, 584 [3] [ 213 P.2d 399 ]; Babcock v. Mc-Clatchy Newspapers, supra at 535 [6] ; Eva v. Smith, 89 Cal. App. 324, 328 [2] et seq. [ 264 P. 803 ]; cf. Glenn v. Gibson, supra at 659 [4]; Gosewisch v. Doran, 161 Cal. 511, 514 [ 119 P. 656 , Ann.Cas. 1913D 442].)
Applying the foregoing rules to the facts of the present case, it appears that plaintiff admits that he made the statements quoted from the reporter’s transcript during the progress of the trial in Judge Pfaff’s court and that he is chairman of the administrative board of B’nai B’rith Record; therefore, his general allegation of falsity is inconsistent with his specific admission of the statements quoted from the reporter’s transcript.
It is clear that these statements were made in response to opposing counsel’s request for a continuance and that plaintiff did not acquiesce in that request; therefore, the following words from the editorial constitute the sole statement upon which libel may possibly be predicated: “Isn’t it too bad that with the hundreds and hundreds of Jews in B’nai B’rith who know something about our Jewish religion, that such an individual is put into a position where he is able to, with ostensible authority, make all of us Jews look ridiculous.
“We wonder whether the thousands of members of B’nai B’rith who observe Rosh Hashanah with solemnity will not simply enthrall over Mr. Maidman’s speech hereinabove quoted.”
The foregoing statement is merely a fair comment upon the conceded statements of plaintiff. It is a matter of common knowledge, of which this court will take judicial notice, that *658 Rosh Hashanah is a day intended to be devoted to prayer. It is traditionally regarded by the Jewish race as a day commemorating the creation of the world, a day on which God remembers all of His creatures and determines the lot of human beings during the coming year. He passes judgment upon all persons who are thus summoned to earnest self judgment, to atonement and to self improvement. (Code Civ. Proc., § 1875, subd. 1; Webster’s Internat. Dict. (2d ed. 1957), p. 2170; 9 Universal Jewish Ency. (1948), p. 227; Blount v. Sixteenth St. Baptist Church, 206 Ala. 423 [ 90 So. 602, 603 [2, 3] ]; State v. Town Council, 18 R.I. 258 [ 27 A. 599, 605 ] ; State v. District Board of School-Dist. No. 8 of Edgerton, 76 Wis. 177 [ 44 N.W. 967, 972 , 7 L.R.A. 330 ]; Shaffer v. Temple Beth Emeth of Flatbush, 198 App.Div. 607 [ 190 N.Y.S. 841, 843 [1-3]]; 20 Am.Jur. (1939), Evidence, §66, p. 88; 31 C.J.S. (1942), Evidence, § 30, p. 575, § 93, p. 689.)
It appears that the editorial in question was not susceptible of an interpretation which would give it the character of a libelous publication.
Our American system of permitting expression of opinion or severe criticism where it goes only to the merits or demerits of a condition, cause or controversy which is under public scrutiny would be the first liberty erased if the philosophy of the swastika or the hammer and sickle ever took hold in the United States of America.
Finally, there was not a proper allegation of special damages. A defamatory publication not libelous per se is not actionable unless plaintiff alleges and proves special damages. (Civ. Code, § 45a; Smith v. Los Angeles Bookbinders Union, No. 63, 133 Cal.App.2d 486, 494 [9] [ 284 P.2d 194 ] ; Babcock v. McClatchy Newspapers, supra, 82 Cal.App.2d 528, 537 [9] ; Peabody v. Barham, 52 Cal.App.2d 581, 585 [6] [ 126 P.2d 668 ].)
Plaintiff merely alleged: “As a further direct and proximate result of the publication of the libelous editorial of November 15, 1957, plaintiff has been greatly injured in his profession as an attorney at law, and has suffered a diminution of his income therefrom. The exact amount of plaintiff’s damages therefrom is unknown at this time, and when ascertained an amendment to this complaint will be.made.”
The foregoing allegation is merely that plaintiff has been injured in his profession and as a result has lost income therefrom.
An allegation that plaintiff has been injured in his trade, *659 business and occupation in a designated sum by reason of publication of alleged libelous matter is insufficient to aver special damages. (Smith v. Los Angeles Bookbinders Union, No. 63, supra, 133 Cal.App.2d 486, 494 [10] et seq.; Gang v. Hughes, 111 F.Supp. 27, 29 [2]; Anderson v. Hearst Publications Co., 120 F.Supp. 850, 852 [1].)
When special damages are claimed, the nature of the loss or injury must be particularly set forth. (Peabody v. Barham, supra, 52 Cal.App.2d 581, 585 [8]; cf. Pridonoff v. Balokovich, 36 Cal.2d 788, 792 [4] [ 228 P.2d 6 ].)
I would affirm the judgment.
Schauer, J., and White, J., concurred.
The editorial which is the subject of the present litigation reads:
"An ‘Important’ Ben B’rith Interprets Bosh Hashanah
"A trial was in progress in the Superior Court of the State of California, Department 5, in Glendale—before the Honorable Judge Roger A. Pfaff, entitled Prazier v. Pass. A Gentile attorney was representing two Jewish defendants, and a Gentile plaintiff was represented by attorney Samuel Maidman who is the ‘ Chairman of the Administrative Board of the B’nai B’rith Record,’ the house organ of the Southern California Council of B ’nai B ’rith Lodges.
‘ ‘ The Gentile attorney, out of respect for his two Jewish clients, asked Judge Pfaff if he could have a continuance for his Jewish clients inasmuch as ‘ tomorrow ’ was a Jewish holiday, Rosh Hashanah, and that his clients would like to observe the Jewish holiday.
"Judge Pfaff, knowing that Samuel Maidman is Jewish, asked Mr. Maidman if he had any objections. Whereupon Mr. Samuel Maidman, ‘ Chairman of the Administrative Committee of the B ’nai B ’rith Record, ’ gave the Court this ‘profound’ and ‘learned’ discourse on the meaning and value of Rosh Hashanah.
"The following quotations are word for word from the Reporter’s Transcript:
" ‘ I have that same problem but out of the good book there is a provision which says on a joyous holiday such as a new year people may do a duty, and not do penance. The holiday where I think it is generally observed that we don’t observe our daily habits is—so far as duties are *655 concerned—is Tom Kippur, which is the holiday next week, so if I can serve my client I have a duty which I think the good Lord . . . ’
“Then Mr. Maidman let the Court and all of his auditors know that he ought to know something about this matter of the proper observance of Rosh Hashanah since he is the Chairman of the Administrative Board of the B’nai B’rith Record, which is tantamount to ‘publisher.’
“After Mr. Maidman’s profound interpretation, i.e., that Rosh Hashanah is a ‘joyous holiday,’ Judge Pfaif refused a continuance and the case proceeded right through Rosh Hashanah.
“Of course, even your adolescent children know that Rosh Hashanah is not a ‘joyous holiday’; that Rosh Hashanah and Tom Kippur are the two most solemn holidays in the Jewish year.
“It is reasonable to presume that Judge PfafE too was under the impression that Rosh Hashanah is a solemn Jewish holiday until he heard Mr. Maidman’s garbled exposition on Rosh Hashanah.
“Isn’t it too bad that with the hundreds and hundreds of Jews in B’nai B’rith who know something about our Jewish religion, that such an individual is put into a position where he is able to, with ostensible authority, make all of us Jews look ridiculous.
“We wonder whether the thousands of members of B’nai B’rith who observe Rosh Hashanah with solemnity will not simply enthrall over Mr. Maidman’s speech hereinabove quoted. ’ ’