Kimball v. Fernandez

41 Wis. 329 | Wis. | 1877

Cole, J.

We are inclined to think the circuit court erred in striking out that portion of the answer relating to the alleged corrupt agreement to procure the appointment of Tucker as postmaster of the city of Berlin. The charge in. the libelous publication in substance is, that the plaintiff, while a member of congress, used his influence to procure appointments to office for money or other valuable consideration; or, in the language of the libel, that he was “ a man who makes appointments a source of personal revenue.” In connection with this general imputation of official misconduct and corruption, is the charge that the plaintiff, in November, 1875, was paid $200 by a person residing on the line of road from Stevens Point to Portage, for his influence in procuring such person’s appointment as postmaster. But the gravest part of the publication is the charge of official misconduct in respect to appointments to office and in making them a source of personal gain or revenue. The habit of receiving money for procuring appointments is the crime imputed to the plaintiff, with a specification of a particular instance of that charge. Now, in that portion of the answer just referred to, which was stricken out, it is alleged, as a defense and also by way of mitigating the damages, that the plaintiff, as a member of congress, agreed with Tucker to procure him the appointment of postmaster at Berlin in consideration that Tucker would pay or cause to be paid the mortgage of $1,200 which the plaintiff held on the property of Silver, his brother-in-law, “ which said sum was to be paid to him by the said Tucker as and for his services ” as member of congress in aiding and procuring for Tucker the office of postmaster of said city. It is obvious that this was one instance of the plaintiff’s habit of using his office as a source of profit. It was a particular act of misconduct of the same character as the offense charged. It is plain that the habit of receiving money as a consideration for procuring appointments to office could only be proven or shown by particular acts. In no other way could the defendants prove the truth of the libel, or establish the general bad character of the plaintiff in respect to the offense charged. It was therefore essential to their defense, and should not have been stricken out of the answer. In Talmadge v. Baker, 22 Wis., 625, which was an action for slander, the defamatory words charged a habit of stealing, as well as a specific theft. It was held that the defendant might show that the plaintiff had committed various acts of larceny, in order to make good the charge. This case seems to be in point on the question before us. "Whether this matter could be given in evidence under the general denial, we shall not determine; for certainly it is more favorable to the plaintifi to require it to be set out in the answer. B - v. I -, 22 Wis., 372; Wilson v. Noonan, 36 id., 321-348.

There was no error in striking out the other matters referred to in the motion. The portions of the answer contained in the second and third paragraphs were clearly irrelevant. The same remark may be made of the third portion of the answer stricken out. That portion set forth with considerable detail that the plaintiff spent large sums of money in corrupting the electors of his district, and that he corruptly influenced or bribed, by the payment of money, divers persons who were delegates to the nominating convention, to vote for his nomination for congress. It may be true that this charged the plaintiff with the commission of a misdemeanor under ch. 56, Laws of 1876;. but this was quite a different offense from that imputed in the libel. The matter in defense or mitigation of damages should be restricted to the particular offense charged in the publication, or to specific acts of that offense. This is as far as the rule has ever been extended I by this court. The libel charges official corruption as a member of congress; and misconduct of a different nature cannot be shown either as a defense or in mitigation of damages. Wilson v. Noonan, 27 Wis., 598.

By the Gowrt. — So much of the order as strikes out that portion of the answer first above referred to, is reversed, and the cause remanded for further proceedings according to law.