Dunlap v. Sundberg

• Decision Date: 12 November 1909
• Citation: 55 Wash. 609,104 P. 830
• Parties: DUNLAP v. SUNDBERG et al.
• Court: Washington Supreme Court

104 P. 830

55 Wash. 609

DUNLAP v. SUNDBERG et al.

Supreme Court of Washington

November 12, 1909

Department 2. Appeal from Superior Court, King County; Jeremiah Neterer Judge.

Libel action by John Dunlap against John C. Sundberg and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

Edgar S. Hadley, for appellant.

McBurney & Cummings, for respondents.

CROW J.

Action for libel, commenced by Dr. John Dunlap, plaintiff, against John C. Sundberg and 24 other defendants. General demurrers interposed by the defendants were sustained, whereupon the plaintiff elected to stand upon his complaint, and has appealed from an order of dismissal.

This action involves the same petition which was published and of which complaint was made in Lathrop v. Sundberg (Wash.) 104 P. 176,

reading as follows: 'We, the following reputable physicians and dentists, occupying offices in the Eitel Building, endeavoring to uphold the honor and dignity of our professions and desiring to encourage only the best and most desirable tenants for our office building, and thereby conserve the best interests of the public at large, are most emphatically opposed to the indiscriminate rental of offices in this building to osteopaths, neuropaths, autopaths chiropractors, uptomtereists, unprofessional masseurs, criminal practitioners, 'medical institutes,' advertising 'specialists,' patent medicine fakers, quacks charlatans, and other fraudulent concerns. We therefore demand the removal of all such persons now holding offices in this building and the exclusion therefrom of all such undesirable tenants in the future.' The appellant alleged that, on March 16, 1908, the respondents, with intent to harass and humiliate him, caused to be published in the Seattle Times, and circulated, the above-mentioned petition of and concerning him in his business and professional capacity; that at the time of its publication and circulation he was, and now is, a duly licensed physician, an alumnus of Princeton, Yale, Baltimore and New York Universities; that he holds licenses to practice medicine from the states of Montana Illinois, and Washington; that he has been a practitioner in each of those states; and that as a further preparation for the practice of his profession he has studied abroad in the hospitals of Europe. He further alleges: 'That at the time of the circulation and publishing of said libel the plaintiff was, as aforesaid, practicing his profession as a physician and surgeon in the Eitel building, and the defendants, and each of them, when publishing and circulating said petition, intended to, and did, charge the plaintiff with being a quack and a charlatan in his business and profession, and charged the plaintiff with being an illegitimate practitioner, and in his business and professional capacity violating the laws of the state of Washington, and perpetrating frauds upon the public; and they further designated this plaintiff as being an undesirable tenant for said building, and that his business, and his manner of carrying on the same, reflected upon the reputation of the building in which the plaintiff and the defendants were situated, and brought disgrace, and shame upon the defendants, who deemed themselves as reputable physicians.' The appellant's name was not mentioned in the petition orpublication. If the complaint is sufficient to show that the words were in fact written and published of and concerning him, the demurrer should have been overruled. Lathrop v. Sundberg, supra. The respondents, however, contend that the complaint does not state a cause of action, for the reason that its allegations fail to show that the words were published of or concerning appellant in any capacity whatever, or that they were so understood by any third person. The article protested against the indiscriminate renting of offices in the Eitel building to persons therein designated and classified as 'osteopaths, neuropaths, autopaths, chiropractors, uptomtereists, unprofessional masseurs, criminal practitioners, 'medical institutes,' advertising 'specialists,' patent medicine fakers, quacks, charlatans, and other fraudulent concerns.' But reputable physicians are not complained of or mentioned. Giving the complaint a most liberal construction, we fail to find any allegation that includes the appellant in any one of the classes that are enumerated. On the contrary, the complaint alleges, and the demurrer admits, that he is an educated and licensed physician, practicing his profession in the Eitel building. The petitioners made no complaint of any such person. In the...