Dabold v. Chronicle Publishing Co.

107 Wis. 357 | Wis. | 1900

Dodge, J.

It is obvious that the pleader intended to point •out by means of tlie innuendo three defamatory meanings, .as conveyed by the published words: first, selling, or offering or exposing for sale, a compound in imitation of pure yellow butter, which contains any admixture of foreign fat,— a crime under sec. 4607c, Stats. 1898; second, selling ■the same without a license, erroneously claimed to be forbidden by secs. 4607c aiid 4607ci/ and, third, acting fraudulently and corruptly as a produce dealer in selling an adulterated commodity as pure.

The second of these alleged meanings may be dismissed ■at once, for neither the statutes referred to nor any other statute of Wisconsin makes sale of imitation butter or of oleomargarine criminal or prohibited because without license from the state, nor can it be said that, independently of any .such law, absence of license would render disgraceful or discreditable sales otherwise innocent.

The published article is, however, clearly capable of conveying the defamation suggested by the other two innuen-does as against some one,— whether as against plaintiff will be considered later. Thus, it is alleged that adulterated ' butter has been sold as of pure creamery malee; that the ■commodity is forty per cent, butter and the balance grease; and that both a customer and the retailer from whom he purchased were misled. This charges deceitful dealing in adulterated or imitation butter, absolutely prohibited by ■sec. 4607c, not, as respondent seems to surmise, a dealing in •oleomargarine, which may be lawful and innocent if the regulations as to marking, etc., prescribed by sec. 4607ri are complied with. The acts so charged also involve moral turpitude in their perpetrator as an individual, and especially as a dealer in such commodities, owing a duty of honesty and good faith to his customers.

More of uncertainty is involved in the consideration whether the publication%in question may fairly be understood as imputing the acts charged to the plaintiff. It is-not for the court to decide on demurrer whether such is-either the meaning or the understanding in fact of the words used, but only whether they are capable of such meaning, reasonably interpreted. If so, then the former question is-for the jury. Schild v. Legler, 82 Wis. 73, 75; Robertson v. Edelstein, 104 Wis. 440, 443. No hesitation need result from the fact that reference is made to the Dabold Produce Company instead of the plaintiff by name, for the complaint expressly alleges that those words mean the plaintiff. Such allegation is sufficient, under sec. 2677, Stats. 1898, on demurrer, though, if controverted, it must be proved. This, statute has relieved plaintiff from, alleging extrinsic facts by way of inducement, which formerly might have been necessary, and has given to the innuendo increased force in alleging the application to plaintiff of the words used.

The article set forth is certainly capable of the construction that the imitation butter sold by the retailers was obtained by them from the plaintiff, called Dabold Produce Company, agent of Armour & Company, from whom it was. shipped to La Crosse. That the retailers purchased in ignorance of the quality of the commodity is implied from the distinct allegation of the surprise of one of them when informed thereof by his customer: We are satisfied that the ordinary reader might well understand the article as asserting that the plaintiff was the source from which the “bogus butter” emanated, and that the pervading suggestion of deception was intended to apply to him, since in one instance, at least, the retailer is asserted to have been innocent, and to have been misled. So understood, the publication would be libelous.

2. It is objected that the complaint does not set forth any control by defendant over matter inserted in the La Crosse Morning Chronicle sufficiently to make it liable therefor, and Simonsen v. Herold Co. 61 Wis. 626, is invoked as authority. That defendant maliciously caused the article-complained of to be published is alleged positively, and without any qualification. This is sufficient on demurrer. A similar allegation was held insufficient in the above-cited case, because it was deemed to be qualified by further allegations, of specific facts, and to be only the pleader’s conclusion from such other facts, namely, that defendant Coleman was a principal proprietor of the Heroic! Company, which owned,, controlled, and published the paper containing the libel, and was manager of the paper. These, facts were held not sufficient to show that he controlled or was responsible for the matter printed therein. In the present case there is no such qualification' or impairment of the direct allegation of defendant’s responsibility.

The demurrer was erroneously sustained.

By the- Court.-— The order of the circuit court is reversed, and the cause remanded with directions to overrule the demurrer.