44 Cal. 641 | Cal. | 1872
• 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
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.