
    Woolf v. Scripps Publishing Co.
    (Decided May 5, 1930.)
    
      Mr. Ralph Stickle, and Messrs. Loomis & Caris, for plaintiff in error.
    
      Messrs. Baker, Hostetler S Sidlo, for defendant in error.
   Sullivan, J.

This is a proceeding in error to tne common pleas court of Cuyahoga county, wherein a demurrer was filed to an original and amended petition attempting to set forth causes of action for the recovery of damages by reason of an alleged libel published in the Cleveland Press on the 23d day of April, 1928, and in order to reach the issues raised it is necessary to examine the article in question published by the newspaper. It is as follows:

‘ ‘ Sued, for Balm
“[Picture or Photo graph.]
“Patrolman Clyde Henry fell under a ‘Mystical and hypnotic’ influence that Mrs. Kuth Felgenauer (above) 11002 Nelson Avenue, exerted, his wife charges in asking $25,000 from the latter. Mrs. Henry, who lives at 1399 E. 123rd Street, won a final divorce decree from Henry recently and immediately filed an alienation suit through attorney Dan J. Fishman.”

The amended petition supplies language which was material and absent from the original petition, which words were “of and concerning the plaintiff.”

There can be no question that this was a necessary allegation, because the plaintiff could not recover against the publishing company under either pleading unless the so-called defamatory words were published of and against her, and for the pleading to be silent upon this question would render it, in our judgment, fatally defective, and consequently the court committed no error in sustaining the demurrer to the original petition.

Libel is a false and malicious publication against an individual, whether the same is in print, writing, or picture, with intent to either injure the reputation of a person or expose him to public contempt or ridicule. Watson v. Trash, 6 Ohio, 531, 27 Am. Dec., 271. Thus it must appear by way of allegation that the language alleged to be libelous affirmatively and intrinsically appears to be against and concerning the plaintiff in the action.

From an examination of the publication in question, instead of this affirmative and intrinsic quality, there appears to be language of a negative character, because the picture in question, which is claimed to be that of the plaintiff, Alta Woolf, is designated in the publication as the likeness of Mrs. Ruth Felgenauer of 11002 Nelson avenue, and there is no allegation in the petition or amended petition that plaintiff bears no resemblance to Mrs. Ruth Felgenauer. Again, it appears from the language of the publication that the parties to the divorce were Mr. and Mrs. Clyde Henry, and the result of the divorce suit, as appears by the language, was the granting of a decree in favor of Mrs. Henry and against Mr. Henry.

There is nothing in the language of an affirmative or intrinsic nature which makes any allegation whatsoever against the plaintiff in error, Alta Woolf, but it is claimed that, inasmuch as it is alleged that the picture is that of Alta Woolf, the defamation naturally arises therefrom, but a reading of the entire publication becomes conclusive that Alta Woolf is not intended. In other words, the full significance and meaning of the publication is such that it is not calculated, from its intrinsic quality, to lead persons reading it to believe that it referred to the plaintiff, and that is the question at issue, and not the question whether it did or did not refer to plaintiff, and this proposition of law is laid down in Ball v. Evening American Publishing Co., 237 Ill., 592, 86 N. E., 1097.

This status, taken in connection with the absence of any allegation with respect to the resemblance between the two.parties as noted, makes it clear that there is an absence of a showing by way of allegation affirmatively appearing that the language published was of and concerning the plaintiff.

From the argument of counsel for plaintiff in error, it would follow that the article is libelous against plaintiff because it states that “Mrs. Ruth Felgenauer of Cleveland .'exerted a hypnotic influence over Clyde Henry, the husband,” but that allegation does not in any way support the claim that reference was had to Mrs. Alta "Woolf of Mantua, Ohio. Supporting this view we cite 36 Corpus Juris, 1161, as follows: “Under the rule that the liability of defendant depends on whether the defamation is calculated from its intrinsic quality to lead other persons to believe that it referred to plaintiff, it has been held that the publication of a portrait of plaintiff annexed to a libelous article is not necessarily actionable, if the persons reading it would not believe it to refer to plaintiff by virtue of the intrinsic quality of the article and other circumstances.”

The case of Ball v. Evening American Publishing Co., supra, is cited in opposition to the views herein expressed, but the fifth syllabus of this case is in conformity with our views that, notwithstanding the picture, if the article in question affirmatively and intrinsically shows that there is either a mistake or a strong resemblance, then and thereupon the article itself separates the picture from the defamatory matter and therefore was not published of and concerning the plaintiff.

That a picture may be the basis of a cause of action for libel there can be no question, under the definition of “libel” noted above, but if the matter published clearly shows that the person represented by tbe picture was not intended, and definitely shows that it directly concerned some one else, then there can be no damages, because the language itself by designating a person other than plaintiff has eliminated the plaintiff from any connection with the publication.

Holding these views, the judgment of the common pleas court is hereby affirmed.

Judgment affirmed.

Vickery, P. J., and Levine, J., concur.  