Peabody v. Barham

[583]

MOORE, P. J.

Plaintiff appeals from a judgment of The complaint charged that the defendants wrongfully defamed plaintiff and brought her into contempt and by publishing in the columns of a widely circulated daily the following statement: “Eddie Peabody’s divorcing wife, ten years his senior, is also his aunt! ’ ’ The innuendo which follows the alleged libelous words sets forth that the article referred to plaintiff’s husband, Edwin Ellsworth Peabody; that by the phrase “divorcing wife” defendants intended to designate plaintiff and that by the expression “Eddie Peabody’s divorcing wife . . . also his aunt” defendants to imply that plaintiff and her husband contracted an incestuous marriage; that the article was so understood by its readers; and that such marriage was contrary to law and therefore void. Nonsuit was granted after plaintiff had her evidence.

In support of the judgment defendants submit that: (1) the publication was not libelous per

se

because it was of an innocent interpretation; (2) that if the language is not libelous per

se

no cause of action is stated because no special damages are pleaded; (3) that the court properly the evidence offered in proof of special damages.

(1) A publication is libelous per

se

when on its face and without the aid of innuendo, it exposes a person to hatred, contempt, ridicule or obloquy or causes him to be shunned or avoided or which has a tendency to injure him in his occupation. (Civ. Code, §45.) Whether the language used is libelous per

se

must be determined from the language itself. (Mortensen v.

Los Angeles Examiner,

112 Cal. App. 194 [296 Pac. 927].) In order to determine whether it is libelous

per se

no resort may be had to any declaration as to the meaning of the words or as to the intention of their author; it must be construed apart from allegations of innuendo and inducement. (Holway v.