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 еlected 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 madе in Lathrop v. Sundberg, ante p. 144,
“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 bеst 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 rentаl of offices in this building to osteopaths, neuropaths, autopaths, chiropractors, uptomtereists, unprofessional masseurs, criminal practitioners, ‘medical institutes,’ advertising ‘spеcialists,’ 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
“That at the time of the circulation and publishing of said libel the plaintiff was, as aforesaid, practicing his profession as a physiсian 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 рrofession, 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 perpetrаting 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 thе 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 рublished 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 cоmplained of or
The appellant attempts to avoid the defects of his сomplaint 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 neсessary 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.аrose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted,*613 the plaintiff shall be bound to еstablish 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 оf 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,
“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 thе 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 avеrment 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 actiоn.”
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,
The petition here pleaded does not name the plaintiff as one of the persons of whom it complains, nor is it aimed at
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.