Saucer v. Giroux

SHAW, J. Plaintiffs appeal from a judgment in favor of defendant, entered upon an order of court sustaining a general demurrer to the complaint. The action is based upon the alleged act of defendant in causing to be published in a newspaper false and libelous statements that the deceased adult brother of plaintiff Virginia Saucer was an illegitimate son of her deceased mother, which false statements, it is alleged, have caused plaintiff grievous mental and physical suffering, for which she asked judgment for five hundred thousand dollars. The demurrer was properly sustained. [1] While the publication of malicious defamatory statements “tending to blacken the memory of one who is dead” is made a crime (sec. 248, Pen. Code), punishable as provided in section 249 of the Penal Code, it gives rise to no cause of action in favor of a relative of such deceased for the recovery óf damages. [2] While section 460 of the Code of Civil Procedure provides that in an action for libel it is not necessary to state in the complaint any extrinsic facts for the purpose of showing application to the plaintiff of the defamatory matter out of which the cause of action arose, it must contain an allegation to the effect that the libelous statements were published concerning the plaintiff. [3] Not only is there an absence from the complaint of such allegation so required by this section, but it is manifest that such fact could not be alleged. The charge concerning the deceased mother and brother of Virginia Saucer- could have no reference to the latter. There was nothing in the article published which tended in any manner to reflect on the plaintiffs, or either of them, and the alleged grievous mental sufferings of Virginia Saucer were of the same kind as that produced by the publication upon any of the other relatives of the deceased. Hence, if a cause of action exists in her favor, then, manifestly any relative, or even friend, of the deceased who had likewise suffered might maintain a cause of action for damages. In his brief, counsel for appellants admits his inability to find any authority sustaining *734 his contention, while concededly many authorities exist to the contrary, among which see Bradt v. New Nonpareil Co., 108 Iowa, 449 [45 L. R. A. 681, 79 N. W. 122]; Sorenson v. Balaban, 11 App. Div. 164 [42 N. Y. Supp. 654]; Wellman v. Sun Printing etc. Assn., 66 Hun, 331 [21 N. Y. Supp. 577]; Srocki v. Stahl, 14 Cal. App. 1 [110 Pac. 957], The judgment is affirmed. Conrey, P. J., and Janies, J., concurred.