This is an action for libel. The demurrer of the defendants to the amended complaint of the plaintiff was sustained by the court below, and the plaintiff declining further to amend, judgment was rendered against him and in favor of the defendants. This appeal is prosecuted from said judgment.

It is alleged in the amended complaint that the plaintiff is, and for more than two years prior to the commencement of the action had been, engaged in the hotel business in the city of Santa Cruz, and was then, and for more than a year prior thereto had been, the sole owner and proprietor of the Hotel St. George, situated in said city, and as such owner and proprietor of said hotel was then, and had been for the period named, engaged in the hotel business, and catering to the public as such, including both the residents of said city and county of Santa Cruz, and others who arrived at said city from abroad, in the matter of hotel accommodations and board and lodging.

That the defendants were, and for more than five years continuously had been, the exclusive proprietors and owners of the newspaper named the “Santa Cruz Morning Sentinel,” published in the said city of Santa Cruz, which has, and has had, a large and extensive circulation in said city and county and state.

That on the thirtieth day of March, 1902, the said defend ants did falsely and maliciously, and with intention to expose the plaintiff to hatred, contempt, ridicule, and obloquy, and to cause him to be shunned and avoided, and to be injured in his occupation and business, publish in said newspaper of and concerning the plaintiff, the following article, to wit:—

And it is averred in the said amended complaint that the said publication was and is false and defamatory; that by means of said false and defamatory publication, as above alleged, said defendants did fateely and maliciously expose the plaintiff to general and public hatred, contempt, ridicule, and obloquy, causing him to be avoided and shunned, and did injure him in his occupation and business, to his damage in the sum of ten thousand dollars, for which judgment is prayed. The demurrer is placed upon the ground that the said amended complaint does not state facts sufficient to constitute a cause of action, and is ambiguous, unintelligible, and uncertain, specifying wherein it is alleged to be so ambiguous, unintelligible, and uncertain. ¡In the order of the court below sustaining the demurrer it is recited as a reason for sustaining the same, that a part of the publication consists of a letter written by the plaintiff himself, and that the pleader must select that portion of the publication upon which he bases his action.

The amended complaint, however, as will be seen, denounces the whole article, as published, as being false, and this sweeping allegation applies to the letter alleged to have been written by the plaintiff as well as to the comments upon it.

If the letter were fabricated, as must be assumed from the allegations of the complaint, then the article, taken as a whole, is libelous per se, inasmuch as it does not fall within the definition of a privileged publication. (Civ. Code, secs. 45, 47, 48; Code Civ. Proc., sec. 462.) The case of Lick v. Owen, 47 Cal. 252 , is somewhat analogous to the one at bar. In that case the defendants, as editors and publishers of the San Jóse Daily Mercury, published an article consisting of comments upon an alleged interview with Mr. Lick. In the interview Mr. Lick is alleged to have given, somewhat in detail, his early career, including wanderings in South America, and his arrival in California in pioneer days, and his various transactions and business in this state, where, by good luck rather than good management, he had accumulated a fortune. Subsequently, as stated in the article, defendants published a so-called apology, making some few corrections in the alleged interview. Instead of demurring, the defendants in that case answered, admitted the publication, but alleging that it was published as a mere pleasantry, and without malice. The plaintiff submitted the case to the jury on the pleadings, and the only testimony for the defense was as to the exculpatory matter set up in the answer, denying that the publication was malicious. This being all the evidence, the court, of its own motion, charged the jury that the publication was libelous as tending to reflect shame upon the person of the plaintiff, and to hold him up to the people as an object of ridicule. In the opinion on the appeal in this court it is said: “We agree with the court below on this point. ... If the publication be libelous and not privileged, the law implies that it was malicious. This is not a mere presumption which may be wholly overcome by proof, but it is a legal conclusion, which cannot be rebutted. But whilst the absence of actual malice cannot be shown as a bar to the action, the defendant may plead and prove ‘any mitigating circumstances to reduce the amount of the damages.’ ” And, as is said in Wilson v. Fitch, 41 Cal. 363 , “All libels are conclusively presumed to be in some degree, malicious.” (See, also, Fitch v. De Young, 66 Cal. 339 .)

The court below, under the circumstances, erred in sustaining the demurrer to the amended complaint. The judgment entered against the plaintiff must therefore be reversed and the cause remanded, with directions to overrule the demurrer.

It is so ordered.

Shaw, J., and Angellotti, J., concurred.

Hearing in Bank denied.