Dunlap v. Sundberg , 55 Wash. 609 ( 1909 )

Crow, J.

Action for libel, commenced by Dr. John Dunlap, plaintiff, against John C. Sundberg and twenty-four other defendants. General demurrers interposed by the defendants were sustained; whereupon the plaintiff elected to stand upon his complaint, and has appealed from an order of dismissal.

This action involves the same petition which was published and of which complaint was made in Lathrop v. Sundberg, ante p. 144, 104 Pac. 176, reading as follows:

“We, the following reputable physicians and dentists, occupying offices in the Eitel Building, endeavoring to uphold the honor and dignity of our professions and desiring to encourage only the best and most desirable tenants for our office building, and thereby conserve the best interests of the public at large, are most emphatically opposed to the indiscriminate rental of offices in this building to osteopaths, neuropaths, autopaths, chiropractors, uptomtereists, unprofessional masseurs, criminal practitioners, ‘medical institutes,’ advertising ‘specialists,’ patent medicine fakers, quacks, charlatans, and other fraudulent concerns. We therefore demand the removal of all such persons now holding offices in this building and the exclusion therefrom of all such undesirable tenants in the future.”

The appellant alleged that, on March 16, 1908, the respondents, with intent to harass and humiliate him, caused to be published in the Seattle Times, and circulated, the above mentioned petition of and concerning him in his business and professional capacity; that at the time of its publication and circulation, he was and now is a duly licensed physician, an alumnus of Princeton, Yale, Baltimore and New York universities; that he holds licenses to practice medicine from the states of Montana, Illinois, and Washington; that he has been a practitioner in each of those states, and that as a further preparation for the practice of his profession, he has studied abroad in the hospitals of Europe. He further alleges:

“That at the time of the circulation and publishing of said libel the plaintiff was, as aforesaid, practicing his profession as a physician and surgeon in the Eitel building, and the defendants and each of them, when publishing and circulating said petition, intended to and did charge the plaintiff with being a quack and a charlatan in his business and profession, and charged the plaintiff with being an illegitimate practitioner, and in his business and professional capacity violating the laws of the state of Washington, and perpetrating frauds upon the public; and they further designated this plaintiff as being an undesirable tenant for said building and that his business and his manner of carrying on the same reflected upon the reputation of the building in which the plaintiff and the defendants were situated, and brought disgrace and shame upon the defendants who deemed themselves as reputable physicians.”

The appellant’s name was not mentioned in the petition or publication. If the complaint is sufficient to show that the words were in fact written and published of and concerning him, the demurrer should have been overruled. Lathrop v. Sundberg, supra. The respondents, however, contend that the complaint does not state a cause of action, for the reason that its allegations fail to show that the words were published of or concerning appellant in any capacity whatever, or that they were so understood by any third person. The article protested against the indiscriminate renting of offices m the Eitel building to persons therein designated and classified as “osteopaths, neuropaths, autopaths, chiropractors, umtomtereists, unprofessional masseurs, criminal practitioners, ‘medical institutes,’ advertising ‘specialists,’ patent medicine fakers, quacks, charlatans, and other fraudulent concerns.” But reputable physicians are not complained of or mentioned. Giving the complaint a most liberal construction, we fail to find any allegation that includes the appellant in any one of the classes that are enumerated. On the contrary, the complaint alleges, and the demurrer admits, that he is an educated and licensed physician, practicing his profession in the Eitel building. The petitioners made no complaint of any such person. In the Lathrop case it was alledged that the plaintiff was an osteopath, practicing his profession in the building. Osteopaths were specifically mentioned in the petition, and this court held that it classed the plaintiff with criminal practitioners, patent medicine fakers, quacks, charlatans, etc.; that the words were actionable per se, and that the complaint stated a cause of action. The petition does not, by the most remote suggestion, so classify any reputable physician such as the appellant alleges himself to'be, and we fail to see how he has been injured or can complain. He cannot expect this court to assume that he is one of the unnamed persons designated in the petition and was, therefore, classified as a criminal practitioner, advertising specialist, patent medicine faker, quack, or charlatan, ignoring his positive allegation that he is an educated, reputable, and licensed physician, honorably practicing his profession in the Eitel building. On the contrary, it may be readily inferred from the complaint that he, as a tenant in the Eitel building, was unobjectionable to other reputable practitioners and tenants.

The appellant attempts to avoid the defects of his complaint by calling attention to his allegation that the words were published of and concerning him, citing Bal. Code, §4938 (P. C. §409), which reads as follows:

“In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause.arose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish on trial that it was so published or spoken.”

In order that the appellant may maintain an action on the alleged libelous publication, it must appear not only that it was written of and concerning him, but also that it was so understood by some third person who read or heard the words. The complaint contains no allegation that the article was understood by any third person to be libelous or defamatory of him.

In De Witt v. Wright, 57 Cal. 576, the court said:

“By §400 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 knew the plaintiff was meant. Without such knowledge, as already observed, there could be no cause of action.”

The affirmative allegations of the complaint, to the effect that the appellant is a reputable physician, negative the general statutory allegation that the words were spoken of and concerning him. Section 535 of the New York Code is, in substance, the same as § 4938, supra; but the court of appeals of New York, in Fleischmann v. Bennett, 87 N. Y. 231, held that merely alleging the application of the article to plaintiff, in the language of the statute, will not save the complaint from successful attack by demurrer, when such allegation is rendered nugatory by other affirmative allegations, showing that the article could not have possibly referred to him. Corr v. Sun Printing & Publishing Assn., 177 N. Y. 131, 69 N. E. 288; Fagan v. New York Evening Journal Pub. Co., 129 App. Div. 28, 113 N. Y. Supp. 62.

The petition here pleaded does not name the plaintiff as one of the persons of whom it complains, nor is it aimed at any tenant engaged in the practice of his profession as a reputable physician. The appellant does not aver that he was engaged in any one of the occupations designated as objectionable, as' did the plaintiff in Lathrop v. Sundberg when he alleged himself to be an osteopath. There must have been something in the petition itself which referred to the.appellant individually, or included him as one of the particular group of individuals therein mentioned and libeled, or it must have contained descriptive statements with which he can identify himself by proof, to show that the words were written of and concerning him, or he must be so identified with the situation or subject-matter mentioned in the petition that, upon showing his relation to them, it may be fairly inferred that the article was directed against him. Appellant’s allegation that he is a reputable physician, which is admitted by the demurrer, expressly excludes him from any one of the classes of alleged objectionable persons mentioned. He has, therefore, pleaded himself out of court, as there is nothing in the complaint to show that the article could, by any intendment, be applied to him, conceding him to be a reputable physician engaged in the practice of his profession as a tenant in the Eitel building.

The complaint fails to state a cause of action. The demurrer was properly sustained, and the"'judgment is affirmed.

Rudkin, C. J., Dunbak, Mount, and Pakkek, JJ., concur.