dissenting. The alleged defamatory publication consisted in the printing by the defendant of a statement by Talmadge to the effect that a report of State Auditor Slate showed that the plaintiff, a State oil inspector, was due the State, in 1924, the sum of $6,285.30 of 1923 inspection fees, while under bond in the amount of only $3,000, and that the report of the State auditor failed to show that this money had yet been turned over. The plaintiff’s petition sets forth that such publication charged her with the crime of embezzlement, and that the charge was false. I am of the opinion that the publication does not set forth the crime *636of embezzlement. It does not indicate that the report charges the plaintiff with having misappropriated any sum whatever. The language of the publication with reference to the insufficiency of the bond can, at most, be taken only as a criticism of the management of the department in which the plaintiff was employed. Nor does the additional statement that “this [the State auditor’s] report does not show that this money has yet been paid” charge embezzlement or misappropriation. Although the publication was made on August 5, 1926, and was with reference to money collected some three years previously, the mere negative statement that the report referred to failed to show that the money had been turned over does not amount to a charge that it had been actually withheld by the plaintiff after it had become her duty to account for the same, in the absence of some statement as to the time when the report was made. However, assuming that the publication was such as might subject the plaintiff to “public hatred, contempt, or ridicule” (Civil Code of 1910, § 4428), as I am inclined to think should be done in view of the statute relative to the duty of oil inspectors to pay over monthly to the State treasurer fees collected by them, and, therefore, if unprivileged, constituted a libel per se, the question is whether the publication as made was actionable. Bona fide comments upon public men with reference to acts done in their public capacity are privileged. Civil Code (1910), §§ 4436(6); Michie’s Annotated Code (1926), § 2158 (52). If the act of the defendant purported to consist, and did consist, in merely publishing the substance of an official report of the State auditor with reference to the public acts of the plaintiff, done in her official capacity, no cause of action in favor of the plaintiff would arise. The fact that the substance of'the report was printed from hearsay, — that is, as stated by another person, — would not operate to change the rule; the only risk incurred or responsibility assumed by the defendant being that in thus publishing the substance of such official report from hearsay, it vouched for the correctness of the substance of the report as quoted by defendant’s informant. While the plaintiff denies that she was guilty of embezzlement, as she alleges was charged, and thus might be taken to have inferentially denied the truth of the substance of the report, she does not allege or intimate that the report was not made, or that the defendant’s statement of the same was not substantially correct. It is the duty of a plain*637tiff to make out bis case by the pleadings, and it is a familiar rule that pleadings are to be construed against the pleader. The natural intendment of the petition is to deny only the substance of the report, and not that the report was made as quoted. In my opinion the trial judge did not err in dismissing the petition on demurrer, as failing to set forth a cause of action.