Mulrooney v. Employers Reinsurance Corp.

Opinion

AGEE, J.

Defendant-respondent issued a “Libel and Slander” insurance policy indemnifying plaintiff-appellant against loss resulting from the broadcasting of slanderous matter over appellant’s radio station, located at Ukiah.

On July 25, 1962 appellant broadcast a defamatory statement over said station concerning one Reno Bartolomie, who thereupon filed a slander action against appellant in the superior court in Mendocino County. He obtained judgment therein against appellant for $10,000, based upon a jury verdict of “$5,000.00 as

general

damages, and $5,000.00 as

punitive

damages.”

1

(Italics added.) No special damages were requested or awarded.

Since no appeal was taken in that action, the issues decided therein as between appellant and Bartolomie were finally adjudicated.

[944]

After satisfying Bartolomie’s judgment in full, appellant commenced the instant action on July 15, 1965, against respondent insurance company, under the indemnity provisions of said policy. This appeal is from that portion of the judgment which denied him any recovery. (No appeal wa: taken by respondent insurance company from that portion of the judgment denying it any recovery on its cross-complaint for expenses incurred in the slander action.) The record on appeal is limited to the judgment roll.

One of the defenses set up by respondent in the instant action is that appellant “did not broadcast a retraction or correction of the defamatory statements giving rise to the [slander action] . . . and therefore breached the contract of insurance ... by failing to comply with the terms and conditions of paragraph 7 thereof, as follows:

“ ‘7. Retraction. Retraction or correction shall be promptly made of any matter which has been broadcast or telecast through error or mistake, or which is unture.’ ”