DUVIVIER v. FRENCH et al., 104 F. 278

After the foregoing statement of the case, G-BOSSCUP, Circuit Judge, delivered the opinion of the court, as follows: The gravamen of an action for libel is not injury to the plaintiff’s feelings, but damage to his reputation in the eyes of others. It is not sufficient, therefore, that the plaintiff should understand himself to be referred to in the article. It is necessary, to constitute libel, that others than the plaintiff should be in a position to understand that the plaintiff is the person referred to. The

article upon which the action in the court below was based, stripped of innuendos, and of averments in the way of inducement, is as follows: “Curiosity led me to peruse the pamphlet entitled ‘Some Remarks on the Voice.’ It is merely a reproduction of the salient points of a lecture given at the Illinois Music Teachers’ Convention. The remarks are such as found in any ordinary publication treating of singing, and appear to be copied verbatim.

The only raison d’etre for this pamphlet is evidently the opportunity it offers for a vile, gratuitous insult and wholesale abuse of a very estimable, conscientious, talented teacher, who is no disciple of quackism, Mr. Karleton I-Iaekett. “This well-known teacher happens to enjoy the respect and esteem of those who understand honesty and scrupulousness; moreover, he is a gentleman, a state of being which it is possible the author of the ‘Voice Remarks’ cannot appreciate.

I notice that in the preface to this pamphlet this erstwhile teacher at a famous London school, says he has ‘found it very necessary to modify one’s European notions as to the relations existing between masters— no, teachers and pupils.’ This remark may be indorsed with the remark that the discovery is very beneficial for the pupils. Possibly had the discovery been made earlier, Chicago would possess one singing teacher the less and London one singing teacher the more.” The

article in these words, and in these words alone, went to the readers of the Musical Courier. It contains in itself no guide to the identity of the person spoken of, except that, whoever he was, he was the author of the pamphlet named; and the inference derivable from the statement that the pamphlet is a reproduction of a lecture given at the Illinois Music Teachers’ Association; and that its author was formerly a teacher in a famous London school, and is now a teacher of singing in Chicago.

It is averred in the inducement that the plaintiff was formerly a-teacher in a London school, and is now a teacher of singing in Chicago; but this alone is not sufficient to identify the plaintiff with the person spoken of, for in a city of the size of Chicago there may be many singing masters who formerly were teachers in London schools. . Xo facts are averred disclosing that any reader of the Courier had ever heard of the pamphlet, or of the lecture, or that any one, not even its publishers, knew that the plaintiff: was the author of the pamphlet.

Indeed, it is not averred that the plaintiff was the author of the pamphlet. The article, therefore, furnishes no knowledge that may be said, either directly or by reasonable inference, to lead up to the identification of the plaintiff with the person spoken of in the article; and the declaration contains no averment of knowledge, extrinsic to the article, that may, with reasonable certainty, connect the

article with the plaintiff. For all that appears on the face of the declaration, the readers of the

article in the Courier may, each and all, have reasonably supposed that the

article referred to some one other than the plaintiff. It is true that the declaration avers that the defamatory language was used of and concerning the plaintiff, but, as has already been said, it is not enough, to constitute libel, that the plaintiff knew that he was the subject of the article, or that the defendants know of whom they were writing; it must appear upon the face of the declaration that persons other than these must have reasonably understood that the

article was written of and concerning the plaintiff, and that the so-called libelous expressions related to him. It is true, also, that in an innuendo it is stated inferentially that the pamphlet was originally a lecture delivered by the plaintiff, and by him published in pamphlet form; but an averment of fact extrinsic to the article, and essential to an identification of the

article with the person complaining, cannot be embodied in an innuendo. 13 Ene. PI. & Prae. 54. The office of an innuendo is to deduce inferences from premises already staled, not to state the premises themselves. An innuendo is not an issuable averment. Facts extrinsic to the article, and essential to a reasonable identification of the plaintiff with the person referred to, must be set out in the inducement. Id. 52; McLaughlin v. Fisher, 136 Ill. 111-116, 24 N. E. 60. Let this whole

article be read without knowledge that the plaintiff was the author of the pamphlet, or without knowledge of the facts reasonably connecting the plaintiff with the authorship of the pamphlet, and no one would know that the plaintiff was the person referred to in the article. This want of information, in the absence of the essential introductory averment, must be assumed to have been the state of mind of the readers of the article. For these reasons, we see no error in the ruling of-the Circuit Court sustaining the demurrer, and it is, therefore, affirmed.