98 Wis. 164 | Wis. | 1898
This actiomwas commenced June 3,1896, to recover damages sustained by reason of a libel published
The libel was in the form of an open letter, and, among other things, with appropriate innuendoes and in effect, referred to the plaintiff as being eloquent in calumnies, outrageously malicious allusions, lying and quarreling with acquaintances and neighbors,but equally as “cod-fish mute” when called upon for an answer, explanation, or the truth, quarreling in guttersnipe fashion, and as incapable of thinking at all; that he appeal’s in a very dim, nay perhaps even dirty, light; that he was tricky and stupid; that he was a noble swindling knight,— smooth swindler; that people despise and avoid him; that, even as a newspaper man, he was only an exceedingly wretched example; narrow of intellect, intolerant, and full of spite and prejudices; that he garbles and compiles from other papers whatever is to his liking, and then parades the same before the world as if they were his own intellectual productions, and without giving exchanges credit therefor; that he was a stupid blockhead,— a base dunce and dude; that he had the hide of a rhinoceros, and ought to be whipped with a rhinoceros whip- into' decency and good manners, and thus drive the fop, dude, and dancing booby out of him; that he was possessed of indescribable vanity; that even his personal appearance carries the irresistible impression of the coxcomb, the dude, the fop; that whoever had business dealing with him discovered only too soon that he was an insipid, superficial individual, whose business methods appear here and there unclean; that such screech owls as he had been characterized as “ scabby carrion;”' that his idiocy and assumed grandeur and vanity together go to make a fool and eccentric fop of him; that he discloses himself as a positively contemptible slack-tail, full of blemishes, fleas, spots, and tatters. The letter closes with a promise to write two other letters, and with these words: “I am your well-equipped adversary, James Q. Miller,, Attorney.” .
1. Several phrases of the article complained of were certainly libelous per se. Bradley v. Cramer, 59 Wis. 311; Smith v. Utley, 92 Wis. 130. This being so, the falsity of such portions of the article were presumed, and the malicious intent to injure the plaintiff implied from the mere publication. In such a case, general damages will be presumed from such publication. Odgers, Libel & S. (Bigelow’s ed.), 291; Barr v. Moore, 87 Pa. St. 385; Neeb v. Hope, 111 Pa. St. 145. Such being the nature of the cause of action alleged, we perceive no error in allowing the defendant to answer both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of damages, especially the letter of May 14, 1896. E. S. sec. 2678.
2. Error is assigned because the court refused to instruct the jury to the effect that the plaintiff was entitled to recover substantial damages; that any sum less than $50 would not be substantial damages, because it would not have the effect to carry costs. The giving of costs is a matter regulated by statute. They are a mere incident to the action. The effect of the statutes allowing or disallowing costs is not for the consideration of the jury. The amount of damages in such a case is peculiarly for the jury, and
3. Notwithstanding the malice of the defendant was implied by law from the mere publication of the open letter complained of, yet the plaintiff putin evidence three or four other letters, written and caused to be published by the defendant, for the avowed purpose of proving express malice,, so as to aggravate and enhance the damages recoverable. Just before resting his case the plaintiff’s counsel stated that “ I desire the record to show that we make no claim to puni-tory damages;” and then immediately put in évidence a letter written by the defendant twelve days prior to the libelous article in question, to the effect that a failure to reply, as requested, would “not remain without consequence.” Subsequently the plaintiff objected to evidence of matters in mitigation of damages, on the ground thatmo punitory damages were claimed; but as the plaintiff’s evidence of malice had not been withdrawn from the case, and as it was impossible to know at that stage of the trial what the charge of the court on the subject would be, we cannot say that the admission of such evidence was error.
4. As indicated, the article complained of contained several expressions each of which was libelous per se. This being so, each of such expressions was, in legal effect, a separate cause of action. As to some of such expressions there does not appear to be any justification in the record. This seems to be conceded in the charge. The court was requested by the plaintiff to instruct the jury, among other things, that, “ regardless of the question as to whether you believe that the defendant has proven the truth of the charge that the plaintiff was unclean or dishonest in his business methods, you must find for the plaintiff on the other libelous
The statute cited provides that “the defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.” R. S. sec. 2618. That section was a literal copy of the New York Code (sec. 165), and was first enacted in this state as sec. 71, eh. 120, Laws of 1856, approved October 9th of that year. Two years prior to that enactment it was held by the highest court in New York that, “since the enactment of the Code of Procedure, the defendant, in an
The construction thus given to the statute in New York, before its adoption here, was expressly sanctioned in this state soon after. Kennedy v. Holborn, 16 Wis. 458. Cole, J., speaking for the court, there said: “Indeed, it would be impossible to add anything to what is there said to show the precise mischief intended to be corrected by this legislation. It was to enable the defendant to show, if he could, the truth of the words complained of in justification and defense of the action, and, if he should fail in proving the justification, then that he might give in evidence the mitigating circumstances tending to rebut the presumption of malice.” So this court has held, in effect, that the publisher of an article libelous per se and not privileged is liable to the injured party for any damage actually sustained, even “though the publication was made without any bad motive or malicious intent.” Wilson v. Noonan, 35 Wis. 321. So it was there, in effect, held that implied malice was as much the subject of disproof as express malice, and that evidence of the absence of bad motive or malicious intent might “ be considered by the jury in connection with the question of punitory damages.” Id. In a later case in this court it was held “ that, where the publication is prima facie libelous, facts and circumstances tending to overcome or lessen the presumption of malice, if properly pleaded in mitigation of damages, may be proved;” and that where the special verdict finds that the article published was false, but was not published with the intent to injure the plaintiff’s feelings and degrade him in the estimation of the public, such verdict did not negative all malice, but merely negatived two elements of express malice, and hence that the exclusion of evidence in mitigation of damages was error. Eviston v. Cramer, 54 Wis. 225. See, also, Reiley v. Timme, 53 Wis. 63. So, in a recent case, this court has expressly held that “ actual
In a recent case in New York it was held that “where the court iu an action for libel had instructed the jury that exemplary damages could not be awarded, it is proper to refuse to charge that ‘ the publication of other similar articles in other papers immediately prior to the publication of the article complained of is a matter the jury must consider in mitigation of damages,’ and £ the fact that the same matter, substantially, was published extensively in the morning papers of the same day is to be considered by the jury in mitigation of damages.’ ” Van Ingen v. Mail & Exp. Pub. Co. (Com. PL), 35 N. Y. Supp. 839.
From the authorities cited, it is quite obvious that actual or compensatory damages are not to be reduced by mitigating circumstances, — especially collateral circumstances, as mentioned in the portion of the general charge quoted. It follows that the instruction requested should have been given.
We do not say that the defendant was not at liberty to show that “ the plaintiff’s character with reference to any of the alleged defamatory chai’ges ” was bad; for, as the court properly charged the jury, “ in this class of actions the plaintiff’s character is always in issue.” Such evidence simply goes to the actual damages,— the extent of the injury. Evidence of b.ad character or reputation, in such cases, has always been admissible under the general issue or general denial, independent of the provision of the Code in question. B. v. I. 22 Wis. 372. This is really all that was decided in Maxwell v. Kennedy, 50 Wis. 645, cited by counsel. The same justice who wrote the opinion in that case also wrote the opinion in Plummer v. Johnson, 70 Wis. 133, where the
The charge contains errors against the defendant as well-' as against the plaintiff; but they are not presented by any specific exception, and hence cannot be considered. The mere fact that one of the grounds upon which the plaintiff moved for a new trial was “ errors of the court in the charge to the jury” does not present for consideration any specific ■error in the charge.
By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.