Harnish v. Smith

GRIFFIN, J.

Plaintiffs and appellants appeal from a judgment in favor of defendant and respondent in a slander action. Plaintiffs were the owners of “The Daily Report,” a newspaper published in Ontario. Defendant was a member of the city council of said city. The complaint alleges that on July 20, 1953, “at a regular meeting of the Mayor and City Council of said City, in the Council Room, in the City Hall, in said City, at which time there were present the Mayor and Members of the City • Council of said City and members of the general public, the defendant, in a loud and angry voice and within the hearing of all persons present in said Council Room, falsely and maliciously said and stated of and concerning the plaintiffs: ‘That the local paper instigated the controversy; that these men are just being used as pawns by this paper; that the paper without any question is following the Communist party line and has created more chaos and discord in what was once a happy city; that there is nothing wrong with the Fire Department except that The Daily Report wants to cause trouble.” Then follows conclusions of the pleaders as to what these utterances meant, as to whom and to what they referred. They allege that said accusations were, and were known by defendant to be, false and untrue, and were wilfully made with malice, for the purpose of injuring plaintiffs. Claimed damages are alleged.

Defendant answered, denied generally these allegations, and as a separate defense alleged the statements described were true and that such statements were made by defendant

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in the proper discharge of his official duties as a public officer, to wit, a member of the city council of the city of Ontario, and that the same therefore were and are absolutely privileged and not a subject of suit for alleged defamation, under the provisions of subdivision 1 of section 47 of the Civil Code, and in connection with an inquiry into the condition of affairs of the fire department and were relevant to the matter under discussion. The answer was thereafter amended to include the statement that since the filing of defendant’s answer " The Daily Report has followed the Communist Party line.”

A jury was sworn to try the cause, a witness was sworn on behalf of plaintiffs, and questions were propounded to him. Objection was made by defendant to the introduction of any testimony on the ground that the complaint did not state a cause of action. The trial court sustained the objection and counsel for plaintiffs then stated in open court that the complaint “couldn’t be improved by any amendment t know of.” Judgment was entered in favor of defendant and plaintiffs appealed.