99 Wis. 156 | Wis. | 1898
The following opinion was filed February 8, 1898;
This action was brought to recover damages sustained by the publication of an alleged libel, of which the following is a copjr: “West Superior, Wis., June 21. (Times Special.) John Paradis, a fourteen year old boy, was drowned while bathing in the Pay of Superior this afternoon. He was seized with cramps in' deep water. Bis mother, now living here, was recently released from the federal prison at Madison, having served a term for counterfeiting.” It appears from the allegations of the complaint, and the innuendoes therein contained, that the plaintiff is the mother therein mentioned, and that the article was so published of and concerning her.
The answer admits the defendant is a corporation; that June 22, 1896, it published the Minneapolis Times; that it published such article on that day in that paper; that the plaintiff is the mother of Joseph Pellardis, who was drowned June 21, 1896; that the agents of the defendant in writing the article, and the defendant in publishing the same, attempted to report the drowning of said Joseph Pellardis, but failed to do so. The answer further denies all malice, and alleges good faith; and by way of justification alleges, in effect, that prior to November 14,1894, one Frank Turgeon was engaged in counterfeiting the lawful money of the United States, in violation of the federal statutes; that dur
At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed her damages at $450. Erom the judgment entered thereon the defendant brings this appeal.
1. The article published was libelous fer se. The extent of damages sustained by the plaintiff depended, in a meas
2. Several errors are assigned by reason of the published article referring to “John Paradis,” as the boy who was •drowned, instead of “Joseph Pellardis;” but, as indicated, the answer expressly admits that the “plaintiff is the mother of Joseph Pellardis, who was drowned” on the day named; and that the defendant, in writing and publishing the article, “attempted to report the drowning of said Joseph Pel-lardis, but failed to do so.” In other- words, the answer admits that the defendant wrote and published the article of and concerning the plaintiff,— the mother of the boy who was so drowned. Among such errors, based upon such difference in names, was a portion of the charge to the jury, ■as follows: “Plaintiff’s family name is Pellardis. The publication mentioned her by the name of Paradis, and speaks of the boy as John, whereas his name was Joseph. That simply, gentlemen, is, there is not any question but plaintiff was referred to here, but the error in the names your attention is called to as bearing upon the question of the publicity; that is, the degree to which the publication pointed to the plaintiff, as bearing upon the question of the amount of damages.” In view of the admission in the answer mentioned, we perceive no error in charging the jury to the effect that there was no question but that the plaintiff was referred .to in the article. The court was only concerned with the meaning of the article as applied to the plaintiff. Hanson v. Globe Newspaper Co. 159 Mass. 295, 296. True, the difference in names inight induce readers of the article to think that some one other than the plaintiff was referred to, and to that extent was favorable to the defendant, but
3. There is another feature of the case, which obviates several errors assigned. On the trial the plaintiff disclaimed any punitory damages, and the court ordered such disclaimer of any claim for punitory damages to be placed upon record. Upon that point the court charged the jury: “Coming to the question of damages, you will give the plaintiff such sum as will fairly compensate her for the injury the publication has proximately done to her reputation so far as it is untrue; also such sum as will fairly compensate her for the injury to her feelings proximately caused by the publication, so far as it is untrue. You will give nothing further in way of exemplary damages; nothing in the way of punishment of the defendant, or as warning to it or other papers; and in passing upon the question of damages you will, of course, carefully consider all the circumstances of the case, so far as they have been revealed by the evidence given in court.” This confined the plaintiff’s recovery to actual damages. This court has recently held that such damages cannot be reduced by the defendant’s alleging and proving mitigating circumstances. Candrian v. Miller, 98 Wis. 164. The libelous article stated that the plaintiff had been “ recently released from the federal prison at Madison, having served a term for counterfeiting.” The answer does not attempt to justify this charge, and what it alleges about her arrest, indictment, and being committed to jail for want of bail, and finally discharged, without trial and upon the sole ground of sympathy, could only have the effect of mitigating the damages. Upon this state of the record, and under the rul
It follows from what has been said that what is pleaded' and proved and attempted to be proved in respect to the arrest, indictments, and the committing of the plaintiff to jail for want of bail, and her criminality and complicity with Turgeon in counterfeiting, could only be available to the defendant in mitigating the damages. But, as indicated, since the plaintiff, under the charge, could only recover actual damages, and since such damages could not be reduced by mitigating circumstances, it follows that, in so far as such testimony was admitted, it was prejudicial to the plaintiff;, and there was no error in excluding any of it. Whether it was error to charge the jury to the effect that counterfeiting and the passing of counterfeit money are distinct crimes, or whether the latter may be included in the former, it is not necessary here to decide, for the reasons stated. It is true, the case does not seem to have been tried with reference to the law as held in Candrian v. Miller, 98 Wis. 164, otherwise the charge might, in some respects, have been different. '
What has been said, it is believed, covers, in effect, all the errors assigned, although they have not all been specifically considered; in fact, they are so numerous and of such a character as not to require specific consideration. We find no reversible error in the record.
By the Court.— The judgment of the superior court of Douglas county is affirmed.
A motion for a rehearing was denied April 12, 1898.