70 Wis. 83 | Wis. | 1887
1. This action is for damages by reason of publishing the plaintiff as a “ shunk,” with accompanying epithets. We think the article published by the defendant must be regarded as libelous per se, within the repeated decisions of this court, even when construed in connection with the card mentioned in it. It is unnecessary to restate the rule as to what constitutes such libel.
2. There was no error in excluding the conversation of the plaintiff with the witness Hensel, when he asked him to subscribe for the fund to buy the coat mentioned in the two publications. It is said to have been offered for the purpose of showing the spirit in which the plaintiff inaugurated the attack upon the defendant, which appeared in the card. The plaintiff’s publication of the card, however, cannot, as we think, be regarded as a justification of the
3. The defendant was -allowed to prove the plaintiff’s “ reputation as to his business practices,” in order to meet what was said about “ business practices ” in the libel. But error is assigned because the court did not also allow the defendant to prove by the same witness what the plaintiff’s reputation was “ for meddling, making insinuations in regard to competitors in business.” But there is nothing in either publication to make it the duty of the court to allow such additional proof. Besides, the defendant was allowed to make substantially such proof by two other witnesses.
4. Error is assigned because the court said to the jury: “Now to say of a man in writing and to publish it in a newspaper that he is a skunk, if it is intended, as it ordinarily would be when such words are used, to render him ridiculous or odious in the eyes of the people who read the article, is libel.” The court here merely states that such publication as is therein mentioned when standing alone, if made with such intent, would be libelous, with the addition that it would ordinarily be so intended. Such addition is the only ground of criticism, but it was not said of the publication in question,— certainly not of it as a whole,— nor even of what was therein mentioned, if published with a different intention as the jury were at liberty to find.
5. Exception is taken because the court told the jury that “to publish in a newspaper of any one that he is guilty of
6. On the subject of damages, the court, among other things, charged the jury: “ If there was an adequate and sufficient provocation for it in the publication of the article, calculating to produce a prejudice against the defendant among his neighbors, it would go to mitigate the damages; so this publication of Mr. Massuere’s is competent and proper to be considered in relation to this question whether the plaintiff is entitled to punitive damages. You want to examine that question, and see whether there is anything in that article which ought to provoke a reasonable man to call his neighbor, even if he did not like him, such names as these. Evidently the article which Massuere published was in bad taste on the face of it. It-looks like a piece of egotism, advertising his generosity in making a present to
Exception is taken to all of this portion of the charge except the first and last sentences. It is said the court did not instruct the jury to consider the article as a whole, but dwelt upon “ isolated words, sentences, or portions.” But a large part of the article was confessedly harmless, and was treated by the court as “ a very good reply ” to what had been published by the plaintiff. It was the “ calling names,” and the characterizing the plaintiff in the defendant’s article that the court was dealing with. Besides, the defendant made no request for the court to charge the jury to consider the article as a whole, for the presumable reason that it was at the time regarded as satisfactory. "We do not think the court here misled the jury in assuming that the defendant called the plaintiff a “ skunk ” or “ disreputable in his business practices.” It is true that at first he merely denounced the plaintiff “ as only fit to be classed with that repulsive order of creation the Mephitis Americana.” But this is immediately followed by a reference to the plaintiff’s “ ignorance ” being such as to render him “unable to comprehend the appellation applied to you’’ therefore, he said: “ I will translate for your benefit: SKUNK,— a thing as repulsive to the finer sensibilities of
7. It is true, the court rather belittled the significance of the plaintiff’s card, in giving the opinion that.it was not tl much more ” than “ a piece of egotism ” or “ a mere piece of egotism.” This feature of the charge has generated more doubt in the minds of some of us than any other, but, after all, the question of fact upon which such opinion -was given was squarely submitted to the jury for their determination. Many courts hold that such expression of opinion on a mere question of fact, which is finally submitted to the jury for determination, is not error. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 553; Porter v. Seiler, 23 Pa. St. 424, 62 Am. Dec. 341; Kirkwood v. Gordon, 7 Rich. Law, 474, 62 Am. Dec. 418; and the cases cited in these references. But here the fact upon which such opinion was given related wholly to the mitigation of the punitive damages; and it appears from the record that, under the direction of the court, one half of the verdict returned by the jury was remitted by the plaintiff. This remission seems to have been sufficiently large to remove all grievance of the defendant by reason of such expression of opinion, even if it was error. Certainly we cannot say that the damages are now excessive.
By the Court.— The judgment of the circuit court is affirmed.