Contento v. Mitchell

Opinion

CALDECOTT, J.

Respondent Aurelia Contento commenced this action for damages against appellant Thomas Mitchell, alleging that she had been slandered by appellant. Following a nonjury trial, the trial court awarded respondent $3,000 damages. In its conclusions of law, the court stated that the $3,000 was punitive damages. The appeal is from the judgment.

On the morning of June 4, 1969, appellant entered respondent’s beauty salon, and in the presence of third parties, called respondent a “bitch” and a “thief.” Later on the same day, appellant entered another business establishment, where in the presence of third parties, he called respondent a “whore.” On the same day, appellant entered a restaurant, approached a woman with whom respondent had entered the restaurant, and to that third person called respondent “a dirty whore.” The findings of facts stated that none of these statements were true and that all of the statements were made maliciously, wilfully, and intentionally.

The sole issue presented by this appeal is whether it is proper, in an action concerning slander per se, to award punitive damages without an express award of actual damages.

It is a well-settled rule that there can be no award of punitive damages without a finding of actual damages.

(Contractor’s etc. Assn.

v.

Cal. Comp. Ins. Co.,

48 Cal.2d 71, 77 [307 P.2d 626];

Kluge

v.

O’Gara,

227 Cal.App.2d 207, 209 [38 Cal.Rptr. 607].) This mle is based on the principle that the defendant must have committed a tortious act before

[358]

exemplary damages can be assessed.

(Brewer

v.

Second Baptist Church,