FINNEY v. LOCKHART

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District Court of Appeal, Second District, Division 1, California.

FINNEY v. LOCKHART et al.

Civ. 16973.

Decided: July 07, 1949

Howlett & Elson, Eugene M. Elson, Los Angeles, for appellant. Richard K. Gandy & Robert G. Cockins, Robert G. Cockins, Santa Monica, for respondent.

As described by appellant, ‘This action was instituted by the filing of a ‘Complaint for Damages for Inducing Persons Not to Enter Into a Business Relationship’'. It appears from the complaint that plaintiff was ‘engaged in business as a merchant of dog and pet food’; that defendants Lockhart and Stratman, as partners, were engaged in the same business ‘and were competitors of the plaintiff’; that defendants conspired, ‘among themselves to ruin plaintiff's business'.

A trial by jury resulted in a verdict for plaintiff and against defendant Lockhart in the sum of $1 and exemplary damages in the sum of $2,000; at the conclusion of plaintiff's case a ‘motion for judgment of nonsuit’ was granted as to all of the other defendants.

Quoting from appellant's brief, ‘The only question raised on this appeal by Appellant is the amount of the verdict for exemplary damages rendered against him. Appellant claims that the verdict, insofar as it awarded $2,000.00 exemplary damages, was excessive and was awarded under the influence of passion and prejudice in that it was grossly disproportionate to the general or actual damages found by the jury to have been suffered by Plaintiff.’

The record on appeal consists of the clerk's transcript only. Appellant points out that, ‘The complaint alleged a conspiracy on the part of Appellant with the other Defendants, who no longer are in the case, to injure and ruin the business of Plaintiff by causing people who were actual and potential buyers of pet food to believe that the horse meat sold by Plaintiff, for such purpose, was diseased and came from diseased horses. The Complaint further alleged that various statements were made by Appellant and by employees of his, to certain individuals. It was then alleged that said statements were false and malicious and by reason thereof Plaintiff had been greatly damaged and his business greatly impaired in that people on hearing and learning thereof ceased to patronize Plaintiff, all to his damage thereof in the sum of $50,000.00. The jury however found this damage to be only $1.00.’

Appellant then argues that, ‘The jury could not have found Lockhart a member of a conspiracy for the reason that the alleged conspirators were eliminated from the jury's consideration.’

It is also argued that ‘where exemplary damages are assessable, the exemplary damages awarded must bear a reasonable proportion to the actual damages awarded’. Wilkinson v. Singh, 93 Cal.App. 337, 269 p. 705, 708, is cited in support of the last mentioned argument. But, in said case reference to such a doctrine is dictum. Moreover, the opinion recites, ‘We fully appreciate the fact that there is no hard and fast rule fixing the proportion between actual and exemplary damages, in cases where exemplary damages are recoverable.’ Appellant's argument with regard to exemplary damages in the circumstances lacks support in the law. See Scott v. Times Mirror Co., 181 Cal. 345, 184 P. 672, 12 A.L.R. 1007; Clark v. McClarg, 215 Cal. 279, 9 P.2d 505, 81 A.L.R. 908, and Singleton v. Singleton, 68 Cal.App.2d 681, at 703, 157 P.2d 886.

Appellant's argument relating to the conspiracy as quoted above is without merit. With only the judgment roll before the court on appeal it must be assumed there was evidence to support the material allegations of plaintiff's complaint. Moreover it is not the law that a defendant is not responsible for participating in a conspiracy unless one or more of the other co-conspirators are named a defendant or defendants.

The judgment is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.