Lyon v. Fairweather

STURTEVANT, J.

The plaintiff commenced an action against the defendants to recover damages for an alleged libel. The defendants answered and a trial was had in the lower court, the judge thereof sitting without a jury. The plaintiff was awarded damages in the sum of $750, and from the judgment the defendants- have appealed.

In his complaint the plaintiff alleged that the defendants published an article in their newspaper, the “Reedley Exponent, ’ ’ an article of and concerning the plaintiff, which the plaintiff alleged to be libelous. In their answer the defendants denied certain of the allegations of the plaintiff’s complaint and pleaded affirmatively that the article in question was a fair and truthful report of a judicial proceeding. The trial court made findings that the defendants were not guilty of malice in fact, but otherwise the findings were in favor of the plaintiff.

Some time prior to the month of October, 1919, the Reedley Telephone Company had made application to the Railroad Commission for an increase of its rates. A hearing on that application was about to be had and those persons who were opposed to the granting of the application w.ere desiring to obtain a continuance. In their showing for that purpose they obtained the affidavit of Robert Chance. Afterward a charge of perjury was presented against Chance. A preliminary examination was had on the charge, and thereafter

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the article in question was published in the “Reedley Exponent.” As stated above, the defendants contended in the trial below, and now contend, that the publication was a fair and true report without malice, in a public journal, of a judicial proceeding, and that it is privileged. (Civ. Code, sec. 47, subd. 4.) The article is quite long and there is no necessity of setting it forth

in extenso.

‘The appellants in their brief commence with the first line of the article and proceed to the end, arguing as they go that each particular statement is an accurate report of the judicial proceeding, that is, the preliminary examination. The respondent takes the same course and argues that it is not a fair report. At this point we pause to remark that the whole of the article down to the fourth paragraph from the end seems to be a fair and true report of the judicial proceeding as the defendants claim for it. The general tenor of the first part of the article is to the effect that Chance had formerly worked for the Reedley Telephone Company, and also for the Reedley Electrical Company; that for the purpose of making the showing before the Railroad Commission, the plaintiff and others sought to get an affidavit from Chance; that Chance at that time was residing at a distant point, and when he heard that he was wanted he went to Reedley and upon arriving there he was met by the plaintiff and others, who greeted him as a long lost friend; that an affidavit was prepared; that the affiant did not read the affidavit but executed the same; that the affidavit was false and in short was an act of perjury. The árdele then continues with these closing paragraphs: