Buckstaff v. Hicks, 94 Wis. 34

Buckstaff v. Hicks

94 Wis. 34 | Wis. | 1896

Winslow, J.

The publication complained of was libelous if not privileged, and this is the controlling question on this appeal. A verdict for the plaintiff was directed; hence it must be assumed that Assemblyman Pratt actually made the remarks attributed to him, and that he made them at a meeting of the common council, there being competent evidence before the jury tending to prove both of these facts. Proceeding upon this assumption, the question whether the publication of the defamatory words was privileged will be considered.

The proceedings of legislative bodies, of courts, and of military and naval tribunals are privileged. In these cases the privilege is said to be absolute, and, though this may *39not be strictly accurate, it is unnecessary at present to discuss the question, because the publication in issue does not fall within this class. The second class of privileged publications or communications is said to be conditionally privileged from the fact that the privilege depends upon the good faith of the party making the defamatory publication. Oases of conditional or qualified privilege may be divided into three general classes, viz: (1) Eair reports of the proceedings of courts and legislative bodies; (2) where the defendant, in good faith, in the performance of a duty, makes a communication to another to whom he owes the duty; (3) where one who has an interest in the subject makes a communication relating thereto to another having a corresponding interest.

It is certain that the publication in question is not the report of the proceedings of a court or legislative body. The term “ legislative body,” in this connection, has not been extended to cover a city council meeting. Newell, Defamation, S. & L. 559; Odgers, Libel & S. 260. Doubtless, an official report of a city council meeting required to be published by law in the official city paper would be privileged; but that is not the present case. The report before us was not an official report. No official report of-the meeting was ever made or published. The article in question was a mere voluntary report, published as an item of news; hence it cannot be protected as an official report of a council meeting probably would be, nor does the fact that the newspaper was in fact the official paper of the city cut any figure.

The publication, then, not being privileged as a report of the proceedings of a legislative or judicial body, the question arises whether it falls under either of the 'other two classes of publications above named which are entitled to a qualified or conditional privilege. The cardinal principle with reference to these last-named publications or communi*40cations is that they must be made in good faith, by one -who owes a duty or has an interest in the subject matter, to one to whom, the duty is owing, or to one who has a corresponding interest. Now, as to the original communication made, or claimed to have been made, by Mr. Pratt to the common council, it might plausibly be claimed under the foregoing definitions that, if made in good faith by him believing it to be true, it was privileged. The council had proposed certain amendments to the city charter, and sent them to the legislature for action; and Mr. Pratt was explaining to the council the reason, as he understood it, why they failed to be acted upon by the senate. It can easily be seen that the argument in favor of the privilege in such a case would be worthy of very serious consideration. But the publication of those remarks to the world is an entirely different matter. The remarks were made by the city’s representative in the assembly to the city’s representatives in the council, purporting to give information as to the conduct of the representative of the city in the senate with reference to the passage of charter amendments. Now, conceding that such remarks made in good faith were privileged, the privilege did not extend to their publication to the world. Mr. Pratt could not have had his remarks printed and circulated over the state or in adjoining counties, and take refuge behind the fact that he first communicated them to the council, and that -such communication was privileged, and hence that the privilege attached to a republication of them to the world. The evidence showed that the newspaper in question circulated in adjoining counties and cities outside of the county of Winnebago, and outside of the plaintiff’s senatorial district. To claim that there was any duty, public or private, resting on the defendant to publish such a charge against the plaintiff in these localities, is to demonstrate the absurdity of the claim. There was not only no duty, but there was certainly no tangible *41interest in the subject matter on the part of the people outside of the plaintiff’s district. Thus, it is very plainly seen that the publication, even if it could be considered as privileged when made to a citizen of Oshkosh who might be said to be interested in the subject matter, could not be made broadcast to the world and preserve its privileged character. The publication is excessive. It must be confined to people to whom the defendant owes a duty to speak, or who have an interest with the defendant in the subject matter. Rude v. Nass, 79 Wis. 321.

There are two minor questions raised. An instruction was asked to the effect that, if the article published was a fair and accurate account of Mr. Pratt’s remarks, this fact might be considered in mitigation of plaintiff’s damages. This instruction was refused, and error is claimed. The ruling was correct. The plaintiff had abandoned all claim for punitory damages, and the circuit judge had so instructed the jury; hence there could be no recovery save for actual or compensatory damages. These cannot be mitigated by circumstances showing good faith. Grace v. Dempsey, 75 Wis. 313.

The circuit judge charged the jury that, in estimating damages, they were to consider the plaintiff’s injured feelings and tarnished reputation, “taking into account the nature of the imputation, the extent of its publicity, the character, condition, and influence of the parties, and all the surrounding circumstances.” It is said that the word “condition,” in this sentence, must mean “wealth,” and hence that the jury were charged that, in estimating compensatory damages, they might consider the wealth of the defendant. This would undoubtedly be error if such were the legitimate and natural construction of the word, but we do not think it would naturally be so understood. We construe it as referring to social standing, and think it must have been so understood by the jury.

By the Court.— Judgment affirmed.