BUTLER et al. v. CARTER & RUSSELL PUB. CO., 135 F. 69

SHELBY, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. The Circuit Court having sustained the demurrer to the declaration, the sole question presented for our consideration is as to the correctness of that ruling. No question is raised as to the proper allegation of the act of publication, nor as to the statement of the matter alleged to be defamatory.

And no question is raised as to the actionable quality of the language published, for it is clearly such as would subject the party charged to an indictment for a crime involving moral turpitude, or subject her to infamous punishment. The chief objection made to the declaration is that it does not “show on its face that the defamatory words were published of and concerning the plaintiff, Mrs. Frank E.

Butler.” The libel complained of does not contain the name of the plaintiff, and it is therefore clear that, to show a right of action on account of the defamatory words, she must make such allegations as will show that she was meant—that the publication relates to her. By statute, in many jurisdictions, it is made sufficient to allege generally that the defamatory words were spoken or published of the plaintiff. Townshend on Slander & Libel, § 310; 13 Ency. Pldg. & Prac. 40.

But in Florida there is no statute to this effect, and the declaration must be examined as at common law; and we assume that, in the absence of a statute, the averment found in the declaration that the libel was published “of and concerning the plaintiff” would not be sufficient. Townshend on Slander & Libel, § 316. Where the language published does not naturally and per se refer to the plaintiff, and requires extrinsic matter to show its relation to the plaintiff, the declaration must allege by way of inducement such extrinsic matter. Townshend on Slander & Libel, § 308. Has the plaintiff conformed to this rule?

She does not rest alone on the averment that the libel was “published of and concerning the plaintiff,” but she seeks to remove all ambiguity as to its application by the following averment: “That, before and at the committing of the grievances hereinafter alleged, the plaintiff was a professional rifle shot, and had acquired great skill in the art of shooting a rifle at both stationary and moving objects, and was widely known under the name of ‘Annie Oakley,’ and under that name had acquired the reputation among many people of being the best and most accurate woman rifle shot in the world, and under the said name had given exhibitions of her skill in the use of the rifle, for which she charged compensation, and from which exhibitions she derived a large income.” This averment is to be read in connection with the alleged libel copied in the declaration.

Looking at that, we find that it relates to one widely known as “Annie Oakley,” one who is a professional shot, one who had- acquired great skill in shooting, and one who had given public exhibitions as an expert shot. The declaration shows, therefore, that the publication not only refers to the plaintiff by a name by which she was known, but that it refers to her vocation and skill, both of a kind unusual with women.

In substance, therefore, on this point, the declaration says that the plaintiff is known to the public as “Annie Oakley,” and that she, the plaintiff, is the person who is defamed by that name; and, to make her identity clearer, she points out several events in her life that appear to be referred to in the publication, which would probably identify her as the party defamed, even if no name had been used. We are of the opinion that the declaration sufficiently alleges that the libel charged was published of the plaintiff.

But it is claimed that, as the publication asserted that the woman referred to was the daughter-in-law of Buffalo Bill, it is essential that the plaintiff allege that she occupied that relation. This contention is made, also, as to other matters of description in the libel. It is not necessary for a plaintiff to make averments to satisfy every description in a libel. To establish such a rule would enable one to libel with impunity, by adding to a description which everybody would understand one that did not appertain to the person slandered. Mix v. Woodward, 12 Conn. 262, 282.

The judgment is reversed, and the cause remanded with instructions to overrule the demurrer.