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Court of Appeal, Second District, Division 3, California.

Donald W. CUNNINGHAM, Plaintiff and Respondent, v. Russell SIMPSON, Farmers and Merchants Bank of Long Beach, et al., Defendants and Appellants.

Civ. 32789.

Decided: March 27, 1969

Walker & Walker, Charles Z. Walker, Jr., Long Beach, for appellants. James A. Gordon, Jr., Los Angeles, for respondent.

Donald W. Cunningham, as plaintiff, brought an action for damages for slander against defendants, Farmers and Merchants Bank of Long Beach and its agent, Russell Simpson. The jury rendered a verdict in favor of plaintiff for $25,000 and judgment was entered accordingly. Defendants appeal.

Cunningham, who had been engaged in the automobile business in Long Beach, bought a 1958 Thunderbird in Wichita from Virgil Slater. The purchase price of $1,950 was to be paid by draft drawn by Slater through Farmers and Merchants Bank of Long Beach. Cunningham had possession of the car with documents and stickers showing him to be the purchaser of the car and entitled to drive it. He drove the car to Long Beach. Slater forwarded transfer documents and the draft to the main office of the bank at 3rd and Pine Streets. Cunningham advertised the car for sale; Lew Mahieu answered the ad and agreed to buy the car for $2,250. In order to arrange necessary financing Cunningham and Mahieu went to a branch of the bank at 14th and Long Beach Boulevard in Long Beach where Mahieu was known. They contacted defendant Simpson, the loan officer, and explained their business. Simpson inspected the car, and a loan was discussed.

Simpson asked Cunningham for evidence of his title to the car, and Cunningham explained that the title papers with the draft were at the main office of the bank. At the request of Cunningham, Simpson telephoned the main office and was informed that the documents were in the collection department. Cunningham asked Simpson to have them brought to Simpson's branch and offered to pay the service charge. Simpson refused to send for them and told Cunningham he would have to bring them. Cunningham testified that in this conversation Simpson said, ‘Well, it's obvious to me you've got a hot title or you'd bring it down here.’ Cunningham explained he did not have the money but would try to raise it, and he and Mahieu left the bank. Cunningham was unsuccessful in his effort to raise the money. The following day Cunningham and Mahieu met with Simpson; Cunningham could produce no evidence of his title to the car, and Simpson declined to make the loan. Cunningham eventually arranged for another dealer to acquire the car but at no profit to Cunningham.

Cunningham testified that as a result of the occurrence as described he lost his expected profit of $300, he lost his business connection with Slater, and his plans for financing a car business of his own were destroyed. According to his testimony friends who had agreed to invest $40,000 in the proposed business withdrew their offers, and the plan to organize the automobile business was frustrated.

In the trial the plaintiff did not call Mahieu as his witness nor produce any evidence that anyone, other than himself, heard the slanderous remark to which he had testified. He produced no evidence as to what caused him to lose his business connection with Slater or what caused his friends to withdraw their offers to finance his proposed business.

For the defense Simpson testified he did not make the remark to which Cunningham had testified. Mahieu testified for the defense that he had not heard Simpson make that remark or heard Simpson or anyone else used the words ‘hot title’; the reason he ‘didn't pursue this thing’ was that Cunningham could not produce a title and he, Mahieu, could not spend any more time on it.

In rebuttal, in an apparent effort to impeach Mahieu's testimony, plaintiff called Jack Sandell and questioned him about a conversation he had with Mahieu. Mahieu told Sandell the deal fell through because Simpson told him the car had a bad title; Mahieu did not use the words ‘hot,’ ‘illegal,’ or ‘illegality.’ The statement of Mahieu to Sandell were not contradictory to Mahieu's testimony on the stand, but even if the jury had believed Mahieu had falsified when he denied having heard Simpson make the alleged statement his want of credibility would not have been evidence that he heard the remark. (Marovich v. Central Calif. T. Co., 191 Cal. 295, 304, 216 P. 595; Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 743, 314 P.2d 33; Lubin v. Lubin, 144 Cal.App.2d 781, 795, 302 P.2d 49.)

We do not doubt that a statement that one had a ‘hot title’ to an automobile could reasonably be understood as implying that the car had been stolen or acquired by some other illegal means and therefore a slander as defined by section 46 of the Civil Code. Section 46 of the Civil Code defines slander as a ‘false and unprivileged publication, orally uttered * * * which: ‘(1) Charges any person with crime * * *

‘(3) Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; * * *.’ However, such a statement is not actionable unless it is published (Code of Civil Procedure § 460), and while it is sufficient if it is stated to a single third person (Harris v. Zanone, 93 Cal. 59, 28 P. 845), speaking the slanderous words to no one except the person slandered is not publication in a legal sense.

As far as we know from the record the three men who took part in the conversations were seated together so that each one could have heard the entire discussion. The jury found that Simpson made the statement to which Cunningham testified and perhaps also found that Mahieu heard it. If Mahieu had not testified to the conversation the fact that the three men were taking part or listening would have warranted an inference that Mahieu did hear the remark, but in view of Mahieu's denial, there was no evidence or reason for an inference that he did hear it.

Without evidence that the slanderous statement was heard by a third person a cause of action for slander was not proved, and the judgment must be reversed.

The conduct of the parties as described is difficult to understand. They had a legitimate piece of business to transact. Simpson refused to have the necessary papers brought to his branch of the bank and Cunningham and Mahieu for some unknown reason, refused to go a short distance to the main office where the deal could have been closed. The alleged loss of business opportunities were with people who, so far as shown, had never even heard of Simpson's alleged remark. The verdict and the judgment were wholly out of reason.

Since the judgment must be reversed for insufficiency of the evidence, other points argued in the briefs need not be discussed.

The judgment is reversed with instructions to dismiss the action.



SHINN,* Associate Justice pro tem. FN* Retired Presiding Justice of the Court of Appeal sitting und assignment by the Chairman of the Judicial Council.

MOSS and SCHWEITZER, JJ., concur.

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