Allen v. News Publishing Co.

81 Wis. 120 | Wis. | 1892

LyoN, J.

1. Tbe trial court held that tbe article of February 20th is libelous on its face, and for that reason overruled tbe demurrers to tbe complaint. ¥e think tbe ruling was correct. A publication is libelous when it tends to expose tbe person concerning whom it is written to public contempt or ridicule, and is made without legal justification. Tbe publication of February 20th represents the plaintiff, not only as protesting to defendant’s officers or agents that the article of February 18th was a slander upon ber dead husband and false, and as demanding a retraction thereof, but it also represents ber as saying of him that “ be was a man; ” that “ she bad not the least doubt — that there was not tbe least question — that ber late bus-band was a perfectly formed man, with all masculine powers,” etc. It seems to us that it requires no argument to show that an article which charges that plaintiff not only dónounced in general terms tbe article of February 18th as false and a slander upon the memory of her late husband, and demanded a retraction thereof (which is all proper enough), but which also charges, in effect, that she went into particulars, and protested to the officers or agents of the defendant that the sexual organs of her late husband were perfectly formed, and that his virility and capacity for sexual duty was all that could be desired, is libelous. This is the plain, unmistakable purport of the language which the article imputes to the plaintiff, and if its tendency is not to expose her to public ridicule and contempt we cannot conceive of language which would have such tendency. The trial court held correctly that, if the publication of the article was unauthorized by the plaintiff, it is a libel upon her. Hence the demurrers to the complaint were properly overruled.

2. At the close of plaintiff’s testimony defendant’s counsel moved for a nonsuit on the ground that the article of February 20th was published at the request of plaintiff. The court held that the plaintiff’s testimony failed to show that she requested the publication of that article, but showed only that she denounced it as false, and demanded a retraction thereof, and that the article complained of was not such retraction. Consequently the court denied the motion. The ruling was undoubtedly correct. It may be here stated that the question whether plaintiff requested the publication of the article complained of was submitted to the jury, and the jury found, upon sufficient proof, that she did not.'

3. At the close of the testimony defendant’s counsel moved the court to direct a verdict for defendant. The motion was denied. Enough has already been said to demonstrate that it was properly denied.

4. Several instructions were proposed on behalf of defendant, based upon the hypothesis that the action is predicated upon the article of February 18th. But it is not; and hence the court properly refused to give the proposed instructions. All proper instructions proposed were substantially given.

5. The court instructed the jury that they were at liberty to award exemplary damages if they found for plaintiff and found also that the publication was prompted by actual malice or ill will on the part of defendant towards the plaintiff. It is now claimed that such damages are not recoverable, because such malice or ill will is not charged in the complaint. If such is the rule, which, to say the least, is very doubtful, we think malice is sufficiently charged in the complaint. It charges that the publication is false, scandalous, and defamatory; that the editor of the Daily Review maliciously composed it for publication, and the defendant published it. The defendant is a corporation, and must act through agents. The editor of the Review was its authorized agent to compose articles for, and to publish the same in, the Review. The act of the editor in respect to this publication was the act of the corporation, and his malice is the malice of the corporation. So, on any theory of the law, the malice of defendant is sufficiently averred. The testimony supports the award of exemplary damages.

We perceive no valid reason for disturbing the judgment j hence it must be affirmed.

By the Court.— Judgment affirmed.