Sullivan v. Warner Bros. Theatres, Inc.

WOOD, J.

Plaintiff has appealed from a judgment in favor of defendants rendered in an action for libel.

From the pleadings and the findings of the trial court, which are supported by the evidence, it appears that defendant Warner Bros. Theatres, Inc., was the owner of the Granada Theatre in the city of Santa Barbara and defendant Ralston was employed as manager of the theatre. Plaintiff owned a lunch and ice cream establishment located directly across the street from the theatre, which he operated under the fictitious name of Starr’s Ice Cream Store. Plaintiff placed a poster in the window of his store, which advertised performances at the Fox Arlington Theatre, a rival of the Granada. When Ralston became acquainted with this fact he approached plaintiff and requested that he remove the poster from his ivindow, stating that the advertisement would cause people in the vicinity to go out of the neighborhood for their amusement, thus injuring plaintiff’s business as well as that of the Granada. Upon plaintiff’s refusal to remove the poster Ralston caused the following notice directed to “all employees” to be posted in four places in the Granada Theatre: “You are requested not to patronize Starr’s Ice Cream Co., across the street from the theatre, from this date until further notice. They have shown themselves disloyal to the house and the neighborhood in no uncertain fashion, and do not merit our patronage: It would be well to discourage your friends from dealing with this merchant also. Kindly cooperate. Howard Ralston, Mgr.” The court found that such notices were posted in places accessible to the employees of the theatre only and not to the general public; that Ralston’s intention was that such notices should be seen by his employees only and should be understood by them as a request not to patronize plaintiff’s place of business because the display by plaintiff of advertising of a rival theatre was, in Ralston’s opinion, injurious to the business of the Granada Theatre; that Ral

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ston’s purpose in publishing such notice was to dissuade his employees and their friends from trading with plaintiff, thereby forcing plaintiff to remove the competitive advertising from his window. With the consent of plaintiff the allegations charging special damage were stricken from the complaint. The trial court concluded that the notice was not libelous