Lewis v. Hayes

VICTOR E. SHAW, J., pro tem.

Action to recover both general and special damages for a libel published by defendant and appellant of and concerning plaintiff.

Judgment went for plaintiff, from which, and an order denying defendant’s motion for a new trial, defendant appeals.

The case was here on a former appeal

(Lewis

v.

Hayes,

165 Cal. 527, [Ann. Cas. 1914D, 148, 132 Pac. 122]), to the opinion in which reference is made for a full statement of the facts involved.

The claim for special damages as set out in the complaint was based upon the fact that at the time in question plaintiff was engaged in keeping a rooming-house and also conducted a dancing school, the revenues from both of which ventures were impaired. The jury by special verdict fixed plaintiff’s r damage for loss to the rooming-house business as three hundred dollars, and that for loss to the business of the dancing school at seven hundred dollars. The errors complained of relate chiefly to rulings of the court touching these special damages.

In the course of the trial it was for the first time made to conclusively appear that plaintiff’s sister was a partner with her in conducting both the rooming-house and dancing school. Appellant insists that, since the loss was sustained by the copartnership, plaintiff alone could not maintain the action for the recovery of special damage suffered by her as a member thereof, and,, hence, it is claimed the court erred in denying defendant’s motion, seasonably made at the close of the evidence, to withdraw from the jury the issue as to special damages.

[589]

This contention must be sustained. Any actual loss to plaintiff measurable in money was the result of damage to the copartnership business in which she and her sister Helen were jointly interested. Her special damage, as appeared from her testimony, was based solely and alone upon the damage to the business of the firm of which she was a member. If its business was damaged by any wrongful act of defend- ^ ant, then, under section 382 of the Code of Civil Procedure, - the partners jointly interested therein should be joined as plaintiffs in an action where recovery may be had for the whole injury to the copartnership business. The law will not tolerate a division of a joint right of action into several actions.