The first question is whether the defendant waived its right to object to the special verdict by failing to make any request for the inclusion in the verdict of the question inquiring whether the letter was understood in a defamatory sense by the people to whom it was sent. It is true, during the trial the court invited counsel to suggest special-verdict questions and the defendant made no objection to the special verdict which was prepared; neither did the defendant request the inclusion in the special verdict of the disputed question. The trial court, on motions after verdict, took the view that after it had ruled the letter was libelous as a matter of law, the defendant was not required under penalty of waiver to insist on an insertion in the verdict of a question which his ruling made unnecessary. Most of the cases cited on the waiver point by the defendant concern cases where an appeal was taken from a denial of appellant’s motion for a new trial on the grounds of waiver. One can waive his right to object to the contents of a special verdict by failure to request an additional question. See
Hilker v. Western Automobile Ins. Co.
(1930),
However, here, the trial court’s ruling the letter was libelous as a matter of law precluded including the question in the special verdict and the defendant, under such facts, was not required to ask that the question be submitted. On motions after verdict, the trial court was unable to supply the answer to the question as a matter of law because he would have to conclude the letter was not understood by the recipients thereof in a defamatory sense or that the letter was not defamatory in any meaning. The defendant did not waive his right to raise the question of the error of law on motions after verdict. The argument of the plaintiff, based more on form than on substance, would prevent a trial court from correcting a ruling which it believed to be erroneous and which controlled the contents of the verdict. We hold, on these facts, that a trial court under sec. 270.49, Stats., is not so limited in its powers to grant a new trial based on an error of law.
Further discussion of the points raised by the plaintiff requires a brief discussion of the law of libel and its anomalies. That these and absurdities exist in the law, there is no doubt. Pollock, Law of Torts (13th ed.), pp. 243-249; Courtney, Absurdities of the Law of Slander and Libel, 36 American Law Review (1902), 552. The indiscriminate use of the phrases “defamatory per se” “libel per se,” ’“slander per se,” “actionable per se,” “libel per quod,” and “libelous as a matter of law” as sometimes expressing some shade of the same meaning and other times different and various meanings, has led only to confusion. Two opposing rules governing the actionability of libel exist which also add to the confusion.
Defamation is composed of libel and slander. Some courts consider them Siamese twins, others identical twins, still others just twins. Historically, they are not twins but *458 siblings. At common law, all libels were actionable without proof that damages occurred. Damages to one’s reputation were conclusively presumed from the publication of the libel itself. A jury could award not only nominal damages but substantial damages by way of compensation of the harm to the plaintiff’s reputation without alleging or proving that such damages, in fact, occurred. Shakespeare expressed the idea in the words of lago:
“Good name in man and woman, dear my lord,
“Is the immediate jewel of their souls;
“Who steals my purse steals trash; ’tis something, nothing;
“ ’Twas mine, ’tis his, and has been slave to thousands;
“But he that filches from me my good name
“Robs me of that which not enriches him,
“And makes me poor indeed.”
Othello, Act III, Scene III.
This is the rule in England and in the minority of states as to all libels, not only those defamatory on their face, sometimes called “libelous per se” but also those in which reference to extrinsic facts must be made to establish the defamatory meaning, which sometimes is called “libel per quod.” Odgers, The Common Law of England (2d ed.), p. 552; Prosser, Law of Torts (2d ed.), p. 587, sec. 93; Restatement, 3 Torts, Defamation, p. 165, sec. 569.
A majority of authorities now hold, however, that where extrinsic facts are necessary to prove the defamatory imputation conveyed (libel
per quod),
damages will not be presumed and such type of libel is not actionable without pleading and proving special damages. Prosser, Law of Torts (2d ed.), p. 587, sec. 93. Kentucky seems to so hold.
Towles v. Travelers Ins. Co.
(1940),
Slander, originally, was not actionable without proof of actual damage of a pecuniary nature, called special damages, but by the nineteenth century it was established that some kinds of slander were actionable without proof of damages which would be presumed from the character of the defamatory language. Such slander was thus actionable per se and consisted of an imputation of certain crimes or of a loathsome disease, or affecting the plaintiff in his business, trade, profession, or office, and of unchastity to a woman. Restatement, 3 Torts, Defamation, p. 170, sec. 570. Newell, Slander and Libel (3d ed.), p. 97, sec. 53; Odgers, Libel and Slander (5th ed.), ch. Ill, p. 39. Such slander has been referred to as slander per se either in the sense of being actionable without proof of special damages or of being defamatory as a matter of law. All other slander not falling into these seemingly artificial categories, no matter how obvious or apparent, is not actionable without alleging and proving special damages. Restatement, 3 Torts, Defamatory Communications Causing Special Harm, p. 185, sec. 575; Newell, Slander and Libel (3d ed.), p. 97, sec. 53. Having proven such special harm of a pecuniary nature resulting from the action of third persons affected by the slander, the plaintiff may also recover general compensatory damages; in a parasitic manner, for damages to the invasion of his interest in his reputation and good name including his own injured feelings.
*460
Libel
per se
and slander
per se
have been used to mean actionable
per se
and sometimes confused with it. The distinction between defamation, which is actionable by itself, or
per se,
and that which requires proof of special damages is not the same as the distinction between language which may be defamatory on its face or may convey a defamatory meaning only by reason of extrinsic circumstances. Our own court confused these two ideas in
Judevine v. Benzies-Montanye Fuel & Whse. Co.
(1936),
In the light of this explanation, the plaintiff’s argument there was no inconsistency in the holding of the trial court that the letter was libelous per se and submitting a question to the jury as to the meaning understood by the recipients, is untenable. The court was not using the term “libelous per se” in the sense of actionable per se, nor would it have been correct to dismiss the complaint because no special damages were proven.
In Wisconsin, the words libelous
per se
are sometimes used to indicate language which the court holds defamatory as a matter of law and at other times as being capable of a defamatory meaning. It is the function of the court to determine in the first instance whether a communication published in the form of libel or slander is capable of a defamatory meaning.
Hoan v. Journal Co.
(1941),
The second basic argument advanced by the plaintiff is that a question, inquiring whether the letter was understood by the people to whom it was published in a defamatory sense, was neither a necessary nor a proper inclusion in the verdict because the trial court was correct in first holding the letter, as a matter of law, was libelous and could admit of no other meaning than a defamatory one under the facts. Conceding the letter was capable of a defamatory meaning, we are of the opinion the letter was also capable of being reasonably understood by the recipients in a nondefamatory sense. Many of the cases cited by the plaintiff deal with publications by newspapers and the use of popular or common definitions of the alleged defamatory words. See,
e. g., Gearhart v. WSAZ, Inc.
(D. C. Ky. 1957), 150 Fed. Supp. 98;
Leuch v. Berger
(1915),
Likewise, in determining whether the communication is capable of a defamatory meaning and also in determining whether the defamatory meaning was understood by the recipients, the surrounding circumstances under which the alleged slander or libel was published must be taken into consideration.
Weil v. Schmidt
(1871),
The words alleged to be libelous are susceptible of the meaning the plaintiff was buying Evinrude motors at a discount from dealers and reselling them, a practice which is not illegal. There was some testimony such conduct did not harm the reputation of the plaintiff in his business so as to lower him in the estimation of the recipients of the *464 letter. Some testimony was to the contrary. True, the communication might deter the dealers, as was intended, from dealing with the plaintiff but only from such transactions as he was not authorized or entitled to make with the dealers. Considering the context of the letter, the circumstances under which it was written, and its particular recipients, the trial court, on motions after verdict, properly held the communication was capable both of a defamatory and nondefamatory meaning. It was a question of fact for the jury to determine what meaning was understood by the dealers.
By the Court. — Order affirmed.
Notes
Restatement, 3 Torts, Defamation, p. 165, sec. 569:
“Liability Without Proof of Special Harm, When Imposed— Libel.
“One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the *461 publication a libel is liable to the other although no special harm or loss of reputation results therefrom.”
“Defamation” is defined in sec. 559, p. 140, as “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”