De Witt v. Wright

Ross, J.: The complaint alleges that the defendant “ made, subscribed, and published, concerning said plaintiff, a libel, to wit: That said defendant did * * * make and send to R. O. De Witt (plaintiff’s brother), * * * by telegraph, a dispatch in the words and figures following: ' Fort Jones, March 21st, 1876. To R. O. De Witt, Yreka.—He has been stealing, and I want you to come and clear him. If not, I will put him [578] through for it. H. Wright.’” And the complaint alleges that the words “he ” and “ him ” were intended by the defendant to mean the plaintiff, and “ that said publication was false, and a libel on said plaintiff.” The defendant interposed a demurrer, which was overruled. It ought to have been sustained. According to the averment of the complaint, the “publication” consisted of the making and sending of the telegram to R. O. De Witt. That the matter therein stated is libelous per se, is not disputed. But to enable the plaintiff to maintain an action on it, it is essential not only that it should have been written concerning the plaintiff, but also that it was so understood by at least some one third person. (Townshend on Slander and Libel, §§ 108, 95, 96; Miller v. Maxwell, 16 Wend. 9; Woolworth v. Meadows, 5 East, 231; Bourke v. Warren, 2 Car. & P. 307..) There is nothing in the complaint to indicate that E. O. De Witt knew who was meant by the words “ he ” or “ him ”; and if he did not know, it is clear that one of the essential elements of the cause of action was wanting. By § 460 of the Code of Civil Procedure, it is rendered unnecessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter, but it is sufficient to state, generally, that the same was published or spoken concerning plaintiff; but this section, in our opinion, does not do away with the necessity of the averment that the person or persons who read the writing or heard the words lenew the plaintiff was meant. Without such knowledge, as already observed, there could be no cause of action. Judgment and order reversed, and cause remanded, with directions to the Court below to sustain the demurrer to the complaint. Morrison, C. J., McKinstry, J., Sharpstein, J., Myrick, J., and Thornton, J., concurred.