Russell v. Kelly, 44 Cal. 641

44 Cal. 641 | Cal. | 1872

By the Court, Crockett, J.:

• The action is for libel-, founded on certain publications made by the defendant, in which the name of the plaintiff was not mentioned. At the trial witnesses were called by the plaintiff to testify that they were acquainted with the parties and familiar with the relations existing between them, immediately prior to and at the time the publications were made; and that on reading the publications, they understood the plaintiff to be one of the persons referred to. The plaintiff also offered in evidence a subsequent publication made by the defendant (in which the plaintiff" was referred to by name) for the purpose of identifying him as one of the persons to whom the preceding publications referred. All this evidence was admitted by the Court, against the objections of the defendant; and this ruling is relied upon as error.

There is some contrariety in the authorities on the question, whether, in any case, it is competent to prove, when the name of the plaintiff is not mentioned in the alleged libel, that the witnesses on reading it understood it as applying to the plaintiff. The following authorities hold that such evidence is not admissible: Van Vetcher v. Hopkins, 5 Johns. 211; Gibson v. Williams, 4 Wend. 320; White v. Sayward, 33 Maine, 322; Snell v. Snow, 13 Met. 278; Rangler v. Hummel, 37 Penn. St. R. 130; Briggs v. Byrd, 11 Ind. 353. A contrary rule was adopted in the following cases: Smart v. Blanchard, 42 N. H. 137; Mix v. Woodward, 12 Conn. 262; Smawley v. Stark, 9 Ind. 386; Goodrich v. Davis, 11 Met. 484; Miller v. Butler, 6 Cush. 71; Leonard v. Allen, 11 Cush. 271; McLaughlin v. Russell, 17 Ohio, 475; Tompkins v. Wisener, 1 Snead, 558; Morgan v. Livingston, 2 Rich. 573; Commonwealth v. Buckingham, Thachers’ Crim. Cas. 29.

The rule as laid down in 2 Starkie on Slander, p>. 51, is that the application of the slanderous words to the plaintiff) and the extrinsic matters alleged in the declaration, may be shown “ by the testimony of witnesses who knew the parties and circumstances, and who can state their judgment and opinion on the application and meaning of the terms used by the defendant.” At page three hundred and twenty-one it is said that where it is ambiguous on the face of the libel to whom it was intended to be applied, “ the judgment and opinion of witnesses, who from their knowledge of the parties and circumstances are able to form a conclusion as to the defendant’s intention and application of the libel, is evidence for the information of the jury.” The same rule is stated in almost the same language in 2 Greenl. Evidence, Sec. 417. The correctness of this rule, is not only established by the weight of authority, but is supported by every consideration of justice and sound policy. I am, therefore, of opinion that there was no error in admitting oral testimony to show the application of the alleged libel to the plaintiff.

It is equally clear that the subsequent publication was admissible for the same purpose, and this was the only purpose for which it was offered or admitted. This point was expressly decided in Chubb v. Westly, 6 Car. & P. 436; and White v. Say ward, 33 Maine, 323. The appeal is without merit.

Judgment affirmed.