Pfister v. Milwaukee Free Press Co.

139 Wis. 627 | Wis. | 1909

Barnes, J.

1. A third defense was originally pleaded to •each of the causes of action contained in the complaint, to which a demurrer was sustained. Such defense set forth that the defendant corporation was a citizen and taxpayer of the city of Milwaukee, and that as such it was privileged to ■discuss and criticise governmental affairs, and public graft and dishonesty in municipal contracts, and also to discuss in■dictments and proceedings in court and to bring the same to the attention of the electors and taxpayers of the state; that in the exercise of such right the defendant published the matter's and things set forth in the various causes of action alleged in the complaint; that the plaintiff was indicted as alleged in the complaint, and that plaintiff claimed and caused to be published a statement to the effect that he had received money from the Wisconsin Rendering Company, but disposed of it as directed by said company; that it was publicly and generally known, and the fact was, that said company bad been in negotiation with tbe city of Milwaukee for a ■contract for tbe disposal of its garbage, and that charges of bribery and corrupt conduct were freely made in the public press and elsewhere, during tbe latter part of tbe year 1897 and tbe early part of tbe year 1898, with reference to said ■contract, and that an investigation bad been conducted by a ■committee of tbe common council in reference thereto, at which a large volume of testimony was taken; that it was gen■erally understood, and tbe fact was, that tbe Wisconsin Rendering Company bad been engaged in corrupt practices with reference to its contracts with tbe city of Milwaukee; that when tbe indictment was returned by tbe grand jury, and tbe ■attempted justification of tbe charge therein contained was made public by tbe plaintiff and was delivered to tbe defendant for publication, tbe defendant, without malice, and in tbe exercise of its right and privilege as a citizen and taxpayer of said city to expose, discuss, and condemn public corruption of every kind in public and municipal contracts, and not otherwise, and in tbe exercise of its right to criticise tbe pretended justification of tbe plaintiff, printed and published tbe, articles complained of.

In reference to tbe ruling of tbe court sustaining tbe demurrer to this defense tbe appellants make two contentions: (1) That it was good as a plea of privilege; and (2), if not, it was good as a plea in mitigation of damages. It seems ■clear that tbe plea was one of privilege. It was so expressly denominated. Tbe defendant corporation, as a citizen, •claimed tbe right to discuss questions of public graft and kindred questions. It asserted that in tbe exercise of such right, ■and not otherwise, it published tbe articles in question. Having specifically pleaded tbe matter contained in tbe answer -as a defense of privilege, it should be bound by its pleading in that respect. Affirmative proof of mitigating circum■stances cannot generally be given in evidence without having been specially pleaded. Reiley v. Timme, 53 Wis. 63, 10 N. W. 5; Wilson v. Noonan, 35 Wis. 321; Langton v. Hagerty, 35 Wis. 151; Hacker v. Heiney, 111 Wis. 313, 318, 87 N. W. 249. Neither do we think the defense of “privilege” or “fair criticism and proper comment” was permissible in this case. The plaintiff held no office and was not a candidate for any. Neither did he belong to any class which by seeking and inviting public patronage renders itself amenable to public comment and criticism which could not rightly be applied to a private citizen. It appears that the plaintiff’ is a private citizen, and a false and defamatory publication concerning such a one is not privileged merely because it may relate to some public matter. Werner v. Ascher, 86 Wis. 349, 56 N. W. 869; Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403; Burt v. Advertiser N. Co. 154 Mass. 238, 28 N. E. 1; Park v. Detroit F. P. Co. 72 Mich. 560, 40 N. W. 731.

The case of Davis & Sons v. Shepstone, L. R. 11 App. Cas. 187, 190, states the rule thus:

“It is one thing to comment upon or criticise, even with-severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. In the present case the appellants, in the passages which were complained of as libelous,, charged the respondent, as now appears without foundation, ¡with having been guilty of specific acts of misconduct, and then proceeded, on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offensive and injurious; not only so, but they themselves vouched for the statements by asserting that, though some doubt had been thrown upon the truth of the story, the-closest investigation would prove it to be correct. In their lordships’ opinion there is no warrant for the doctrine that defamatory matter thus published is regarded by the law as the subject of any privilege.”

This rule is approved by the Massachusetts court, and would seem to be particularly applicable vto the facts in the case under consideration, even if it were conceded that the plaintiff was a public character. The appellant relies on the-cases of Dakhyl v. Labouchere, 77 L. J. K. B. 728; Hunt v. Star N. Co. 77 L. J. K. B. 732; and Coleman v. MacLennan (Kan.) 98 Pac. 281, as holding the contrary rule. The publication in the Hunt Case involved the official conduct of a public officer. In the Coleman Case the plaintiff was holding a public office and was a candidate for re-election when the article sued on was published, and the criticism complained of went to his fitness for the office. The libelous publication in Dakhyl v. Labouchere involved the capacity and ability of a physician who was soliciting patronage from the public. All of these cases, it seems to us, present a different principle from that involved in the present case.

2. The answer interposed contained allegations to the effect that the Milwaukee Sentinel, a newspaper owned by the plaintiff, published the indictment returned against him, together with the statement made by plaintiff in reference thereto, as well as other incidents in reference to the transaction, quite similar to the matter published by the defendant corporation, and also that like items were published in all the Milwaukee newspapers and in all the Chicago papers circulating in Milwaukee. On plaintiff’s motion the foregoing allegations of the answer were stricken out, and such ruling is assigned as error. The courts generally hold that evidence of this character is improper and cannot be received in reduction or in mitigation of damages. Palmer v. Matthews, 162 N. Y. 100, 56 N. E. 501; Wilson v. Fitch, 41 Cal. 363; Sheahan v. Collins, 20 Ill. 325; Gray v. Brooklyn U. P. Co. 35 App. Div. 286, 55 N. Y. Supp. 35; Tucker v. Lawson, 2 T. L. Rep. 593; Enquirer Co. v. Johnston, 72 Fed. 443; Sun P. & P. Asso. v. Schenck, 98 Fed. 925. We do not hold that a defendant may not show in mitigation of damages that a libelous article was copied from another newspaper and published under the belief that it was true. Such evidence is held to be admissible. Palmer v. Matthews, supra. Here the portion of the pleading stricken out, at best, simply showed that other articles of like tenor and effect to those published in the Free Press were also published in other papers. This does not present the question that is presented where a publisher shows that the article complained of was quoted from another publication and published because it was believed to be accurate.

3. After the plaintiff was indicted he purchased certain past-due notes of the Wisconsin Rendering Company and commenced action thereon. In connection with such suit a statement was given to the public press by the attorneys for the plaintiff to the effect that, if plaintiff had stolen any money belonging to the Wisconsin Rendering Company, the conversion of the money might be pleaded as a defense and the plaintiff’s cause of action defeated. Certain articles were published by the defendant corporation charging in effect that the suit was not begun in good faith, but on the contrary was begun to befog the people and to intimidate witnesses and by unfair means to secure access to the evidence taken before the grand jury. On the trial the plaintiff was permitted to show that a civil suit was begun, and that the Wisconsin Rendering Company interposed no answer therein, but paid to plaintiff the amount sued for, with costs. It is urged that it was error to admit such evidence. The defendants pleaded the truth in justification. It was not incumbent on the plaintiff to negative the truth of the charges made by offering evidence tending to establish the tona fides of the transaction. If he saw fit to assume that burden it is difficult to see how the defendants were prejudiced thereby. It is also urged that, the plaintiff having been permitted to offer evidence in relation to this suit, the defendants should have been permitted to go into the Crilley & O’Donnell transaction. It is a sufficient reply to this to say that the plaintiff did not open up the Crilley & O’Donnell transaction by offering this evidence. The position of the plaintiff was that he had been indicted for stealing a large sum of money; that he had commenced a civil suit against the party from whom it was alleged he had stolen, and the opportunity was now afforded such party to establish such theft and thus avoid paying the amount of the notes sued on. Manifestly, evidence tending to show that the money was paid to buy off 'Crilley & O’Donnell, at the request of the Wisconsin Rendering Company, was not invited by the evidence offered by the plaintiff, and neither was the door opened for its admission.

4. The plaintiff by innuendo alleged that certain of the articles published of and concerning him charged him with having committed larceny by stealing the sum of $14,000 from the Wisconsin Rendering Company, and that certain other articles accused him of committing said offense of larceny, or with having committed the crime of bribery by using-said sum of money to corrupt members of the common council of the city of Milwaukee. The complaint further alleged that the readers of the newspaper placed the same meaning on the articles that was attributed to them by innuendo in the complaint. The answer denied that the publications were intended to mean or were in fact understood to mean that the plaintiff was guilty of bribing members of the common council, and alleged affirmatively that such articles were intended to mean and were understood by the readers of the paper to mean that the plaintiff had committed bribery in a colloquial sense by buying off the firm of Crilley & O’Donnell from carrying out its contract with the city and thus enabling the Wisconsin Rendering Company to secure the garbage contract at a higher figure. The defendants sought to prove the transaction by which the Wisconsin Rendering Company placed the sum of $26,000 in the hands of the plaintiff to be used by him as directed by said company, and also offered to prove that pursuant to a prearranged agreement between the rendering company, Crilley, and the plaintiff, Crilley did default in his contract, and for so doing was paid a large portion of the money deposited with the plaintiff, and that in consequence of such action the city of Milwaukee was obliged to let the contract for about $25,000 more than the Crilley & O’Donnell bid, and that the rendering company secured the contract. The defendants contended that such transaction should be placed before the jury so that it might be able to say whether the crime of bribery of the common council was charged in certain of the articles, as alleged in the complaint, or whether bribery in a colloquial sense, in connection with the Crilley transaction, was charged, as alleged in the answer. In connection with its offer of evidence pertaining to the Crilley matter the defendants offered to show that it was a subject of public investigation and occupied a large amount of space in the newspapers at the time, and was a matter of general public discussion.

The trial court rejected all eyidence relating to the Crilley transaction. It also held that the articles published did not directly charge the plaintiff with having committed the crime of bribery of the common council, but that they were susceptible of such meaning, and that it was for the jury to say whether or not such was their true meaning. The court further held that it was not permissible to aver in the answer that the plaintiff was guilty of an offense different from that referred to in the complaint and then allege, virtually, by innuendo, that the language used in the published article related to the offense set out in the answer. The view of the-trial judge was that the complaint charged bribery of the common council, and, if such charge was not made in the articles, there could be no recovery, and it was immaterial what crime was in fact charged.

It seems to us that the trial court adopted a rule that was unduly restrictive upon the defendants. If the language-used was susceptible of the meaning attributed to it by the answer, it is difficult to see why the defendants were not precluded, under the ruling of the court, from establishing their-defense of justification. Assuming that the answer placed the proper meaning upon some of the articles, and that defendants could prove the truth of the charge made, their defense of justification would be established. Where an article is placed before a jury, in reference to which the complaint avers that it charges a certain crime, and the jury is told by the court that the language is susceptible of being so construed, and the defendant is precluded from showing that a different meaning should be attributed to it, from a practical point of view very little is left in the way of a defense. Take the case of a doctor, concerning whom it is published that he has killed a patient by malpractice. He alleges that the article intended and was understood to mean that he killed one Smith, a patient of his, who recently died. Cannot the publisher defend by saying that he did not charge the killing of Smith, and that the article was fiot so understood by the readers of the paper, but that he did mean to charge that the doctor had killed Tones, another patient of his, by malpractice, and that the article was generally understood to involve such a charge, and that it was true. If he cannot, and the court tells the jury that the article is susceptible of the meaning attributed to it in the complaint, the only defense the defendant can make is one by way of argument, not supported by any evidence except the article itself.

The case of Dufresne v. Weise, 46 Wis. 290, 295, 1 N. W. 59, may he said to support in some measure the view of the trial court, although the discussion in that case is to the effect that the defendant cannot, in an action for slander, plead and prove that language was used different from that charged in the complaint. That case did not hold that a defendant might not plead and prove that the words used had a different meaning from that attributed to them in the complaint. Here there is no dispute about the language actually used. The case of Bremridge v. Latimer, 10 L. T. Rep. 816, supports the view of the circuit judge. In that case it is held that a defendant may not impute to words a meaning different from, that charged in the innuendo and then seek to justify by showing the truth of the intended meaning. The contrary rule seems to be held in Michigan. Bathrick v. Detroit P. & T. Co. 50 Mich. 629, 16 N. W. 172. We think that the adoption of the rule followed by the circuit court might, from, a practical standpoint, operate to deprive a defendant of a meritorious defense, and for that reason we cannot approve of it. It is true that courts should be careful about permitting evidence of extraneous matters, calculated generally to-heap contumely on the plaintiff, to be received. It is only when it is reasonably clear that the language used is susceptible of the meaning attributed to it in the answer, and that the jury may infer that it was so understood by a respectable-number of the readers of the paper, that proof should be permitted such as the defendants attempted to offer here.

The principal contention made by counsel for the respondents is that the language used in the articles complained of' was not reasonably susceptible of the meaning placed thereon by the answers of the defendants, and that therefore the court was right in excluding the evidence sought to he introduced under the answers; and the correctness of the ruling of the trial court must be sustained on this ground, if sustained at all.

The article complained of in the first cause of action related principally to the charge of larceny contained in the-indictment returned by the grand jury. However, some references were made therein to briberies practiced by the plaintiff. One of the headlines read: "Pfister was to engineer 1901 contract.” The article recited that he was “charged with stealing $14,000 given him by the Wisconsin Eendering Company for the purpose of getting through the council a contract for the disposal of the city garbage in the year 1901P The article further recited:

“The facts as stated in the indictment show that he accepted from the Wisconsin Eendering Company the sum of $14,000 to use in securing for tire company the city garbage 'disposal contract to be let by the common council in the spring of 1901.”

Tbe article further set forth that lawyers, in discussing tbe indictment,

“claimed that as tbe true bill recited specifically that Mr. Pfister received tbe money with tbe understanding that be was to return it, if not used for tbe purposes for which it was given, be bad placed himself in a position where be would have to admit bribery if be made good bis contention that be bad ‘disbursed it years ago’ as directed by Mr. Gross and admitted by Mr. Pfister

We are unable to see bow this article could be understood by tbe readers of tbe paper to refer to tbe Crilley transaction. That took place during tbe latter half of tbe year 1897 and tbe early part of tbe year 1898. Tbe article expressly stated that tbe plaintiff was to “engineer tbe 1901 contract” in reference to which tbe Wisconsin Rendering Company was negotiating with tbe city of Milwaukee, and that tbe plaintiff was charged in tbe indictment with stealing $14,000 which was given him for tbe purpose of securing tbe garbage contract that was to be let by tbe common council in tbe spring of 1901. Tbe statement attributed to certain attorneys would naturally be understood by readers of tbe paper to refer to tbe 1901 transaction. Tbe conclusions that would naturally be drawn from tbe portions of this article which relate to tbe subject of bribery would be that tbe plaintiff was to “engineer tbe 1901 contract” between tbe city and tbe Wisconsin Rendering Company; that be received $14,000 to be used in securing this contract; that be did not pay tbe money back to tbe Wisconsin Rendering Company; and if he did not steal it as alleged in tbe indictment, be used it for tbe purpose for which it was given him, to wit, to secure tbe 1901 contract from tbe city.

Tbe article upon which tbe second cause of action is based was published on tbe day following. One of tbe headlines

asked the question, “Eor wbat purpose was $8,000 disbursed ?” The article then proceeds:

“'Who got tbe $14,000 Charles F. Pfister ‘disbursed’ for tbe Wisconsin Rendering Company ? Wbat was that much money ‘disbursed’ for, and why should Mr. Pfister bave been made tbe disbursing agent? Or if, as Charles Quarles, Mr. Pfister s attorney, says, Mr. Pfister ‘disbursed’ $8,000 of tbe $14,000 under tbe direction of E. C. Gross, president of tbe Wisconsin Rendering Company, wbo got tbe $8,000 ? Wbo got tbe money Mr. Pfister ‘disbursed’ is wbat tbe grand jury wants to know. . . . Mr. Pfister was indicted because tbe grand jury bad abundant evidence, direct and unimpeachable, that Mr. Pfister did get tbe $14,000 for the purpose of getting through tbe council a contract for tbe disposal of city garbage. One of two conclusions was inevitable: Either Mr. Pfister kept tbe money and converted it to bis own uses or be used it in securing the adoption of tbe resolution letting tbe contract to tbe Wisconsin Rendering Company. Tbe grand jury bad no proof at tbe time it returned tbe indictment that Mr. Pfister committed bribery. It did bave plenty of evidence that be accepted $14,000 from tbe rendering company, and that be did not return it to tbe Wisconsin Rendering Company as it was agreed be should if it was not used. Therefore be was indicted for larceny as bailee.”

“Now Mr. Pfister not only admits that be ‘disbursed’ tbe money, but be stoutly insists that be disbursed it as directed by Mr. Gross. To whom did be ‘disburse’ it ? Mr. Pfister did not tell. . . . Everywhere tbe pertinent question was asked: ‘Where, bow, and when did Mr. Pfister “disburse” tbe money, which be not only admits having done, but insists that be did so disburse ?’ Mr. Pfister would give no answer to tbe question. Mr. Quarles, as attorney for Mr. Pfister, was asked tbe .same question. He replied: ‘How did Mr. Pfister distribute it? I do not know. I do not know wbo got it. Eor tbe purposes of tbe case it is sufficient that be did distribute it, as directed.’ ”

Tbe article further recited that lawyers and business men “called attention to tbe fact that tbe indictment showed plainly that tbe grand jury bad indicted Mr. Pfister for larceny, because, while it might bave suspected that Mr. Pfister used the money to corrupt the council, it had no evidence to that effect, but did have abundant evidence that Mr. Pfister received the $14,000 and that he did not return it as agreed.”

There is nothing in this article that is calculated to carry the mind back to any transaction that occurred in 1897. It is true that the date “1901” is not used in this article, as it is used in the preceding article, but the charge of bribery is interwoven with the charge of larceny as contained in the indictment, and the indictment stated that larceny was committed in 1901. Aside from this, the natural inference to draw from the article would be that the plaintiff was indicted for the crime of larceny, rather than that of bribery, because there was evidence before the grand jury to show that larceny was committed during the year 1901, as alleged in the indictment, whereas there was no evidence to show that bribery had •been committed. Furthermore, the article stated that the evidence was plain that Mr. Pfister got $14,000 for the purpose of getting through the council a contract for the disposal of city garbage, and there is no suggestion in the article that the money was used for any other purpose. Of course, the purchase of Orilley might have a more or less direct bearing upon the matter of getting through the common council a contract in favor of the Wisconsin Rendering Company. Rut if such was the charge which it was intended to make, it is difficult to perceive why it was covered up in the manner in which it was, or why the article should have stated that the money was used to get a contract through the council. It seems to us that the ordinary reader of the paper would reach the conclusion, without any hesitation, that, if bribery in any sense was charged, it was charged by saying that the plaintiff used the money to buy members of the common council to vote for the contract. It may be conceded that the Crilley transaction was a matter of public notoriety at the time it transpired, but nearly eight years had elapsed between the time that transaction dook place and the time the article was published, and it appeared that in the meantime the Wisconsin Rendering Company was negotiating other contracts for the disposal of' garbage.

The article upon which the fourth cause of action was based was also published on the 6th of August, and contained the-following statements in reference to the charge of bribery made against the plaintiff :

“ ‘How did Mr. Pfister distribute it ?’ said Mr. Quarles, his-attorney, in reply to a question. ‘I do not know. I do not know who got it. Eor the purposes of the case it is sufficient that he did distribute it, as directed.’ . . . The people of' Milwaukee want to know what Mr. Pfister did with the $14,000 placed in his hands for the purpose of securing from the common council a valuable contract for the Wisconsin Rendering Company. Mr. Pfister says he received the money from President Cross of the rendering company and that he disbursed it as Cross directed. He does not say how or to whom. Mr. Pfister’s attorney says it is a matter of no-consequence. Neither Mr. Pfister’s statement nor that of his-lawyer will satisfy the public. Who got the $14,000 ? ”

It will be observed that in this article again the inquiry is-made as to what Mr. Pfister did with the $14,000 placed in. his hands for the purpose of securing from the common council a valuable contract for the Wisconsin Rendering Company-No reference is made to the Crilley & O’Donnell transaction, but the fact that the money was to be used in securing a contract from the common council prominently appears in the article. If the article is not susceptible of meaning that the-money was used for the purpose of corrupting members of' the common council, we certainly do not think it would be understood to mean, or would be reasonably susceptible of' meaning, that eight years before money was placed in the hands of plaintiff to buy off a competitor of the Wisconsin Rendering Company.

The only other material reference to the question of bribery is contained in an article published August 8th, which is made-the basis of the seventh cause of action. This article is more indefinite as to the nature of the bribery charge. The article recited that Mr. P'fister in his statement said that

“about eight years ago he received from the officers of the. rendering company money for disbursement as directed by President Gross of the company, and that he disbursed some-of it, and returned the remainder ‘years ago.’ And when Mr. Charles Quarles . . . was asked how Mr. Pfister distributed the money he answered: ‘How did Mr. P'fister distribute it ?’ I do not know. I do not know who got it. Eor the purposes of' the case it is sufficient that he did distribute it, as directed.’ Mr. Quarles may be satisfied and Mr. Pfister may be satisfied that it makes no difference to Mr. Pfister, or to the public,, how Mr. Pfister distributed this money or ‘who got it.’ They may not care what the public thinks; but they may as well understand that it is thinking. It thinks it knows how the-money was distributed.”

The complaint alleges by way of innuendo that the language quoted meant and insinuated that the plaintiff used said money for the purpose of bribing city officials of the city of Milwaukee.

The defendants could not attribute some recondite meaning-to the words used which the readers of the article would not-be apt to discover and then proceed to justify on the basis of' such meaning being the true one. Neither is the meaning intended by the writer of an article important, unless such-meaning is the natural and obvious one and the meaning-that would be conveyed to the readers of the article generally. Townshend, Slander & L. § 139; Montgomery v. Deeley, 3 Wis. 709; Wilson v. Noonan, 23 Wis. 105, 107; Filter v. Dautermann, 26 Wis. 518, 520; Weil v. Schmidt, 28 Wis. 137, 141; Eviston v. Cramer, 47 Wis. 659, 660, 3 N. W., 392; Bradley v. Cramer, 59 Wis. 309, 312, 18 N. W. 268; Cochran v. Melendy, 59 Wis. 207, 18 N. W. 24; Singer v. Bender, 64 Wis. 169, 172, 24 N. W. 903; Solverson v. Peterson, 64 Wis. 198, 202, 25 N. W. 14; Guth v. Lubach, 73 Wis. 131, 136, 40 N. W. 681; Pandow v. Eichsted, 90 Wis. 298, 300, 63 N. W. 284; Dabold v. Chronicle P. Co. 107 Wis. 357, 83 N. W. 639.

So much of the foregoing article as pertains to the charge of bribery consists substantially in repeating the inquiry contained in the former articles, — Who got the money ? A reading of this article, in connection with the articles preceding it, would clearly indicate that it was not intended to relate to the 1897 transaction, but was intended to relate to the 1901 transaction. Considering the article by itself, its meaning would be more obscure. But if this article is segregated from the other articles published, we do not think it charges bribery at all or that it could be made to do so by innuendo. The innuendo may explain, but it cannot enlarge, the meaning of the words used. It is only when this article is read in ■connection with the series of articles which preceded it that it can be held to charge bribery in a colloquial sense or in any other sense. Bor this reason we think the court did not err in excluding evidence of the Crilley transaction in reference to this article.

5. The court charged the jury as follows:

“To maliciously print and publish of and concerning a .man that he has been guilty of a crime is a libel, if the charge is false. It is also a libel to maliciously print and publish false statements concerning a man which tend to degrade or disgrace him or subject him to degradation, contempt, or ridicule.”

It is urged that hy this charge the court submitted to the jury for assessment of damages a libelous charge which did not impute the commission of a crime, and that it was therefore error for the court to exclude evidence offered by the defendants which might minimize the damages that would otherwise be assessed against them, or perhaps constitute a defense to the causes of action brought on publications which did not charge a criminal offense. It is not seriously contended that the instruction was not in itself correct. The complaint set forth several libelous articles which did not charge a crime. One article charged that plaintiff had meretricious objects in view in purchasing the Milwaukee Sentinel, one such object being to suppress a suit which might be damaging to his reputation.' Another article charged that the purpose in bringing suit against the Wisconsin Rendering 'Company was to befog the public and divert attention from the real controversy, and it was likewise charged that one purpose plaintiff had in view in bringing such suit was to-intimidate witnesses for the state in the criminal prosecution. He was likewise charged with intent to improperly secure the evidence upon which the grand jury acted. The portion of the charge above quoted, referring to acts which did not in themselves constitute crimes, was proper enough in view of the fact that several of the articles set out in the complaint-did make libelous charges without actually accusing the plaintiff of a crime. We do not understand that any material evidence was rejected which would tend to prove the truth-of the statements in the articles which contained libelous matter but did not charge the commission of a felony, and we fail to see where the court erred in giving this portion of the charge.

6. It is further urged that the court erred in excluding evidence tending to show the public notoriety of the so-called 1897 garbage transaction. If the language complained of was reasonably susceptible of being understood to refer to such transaction, then it would be very proper to show that it was a matter of common knowledge or public notoriety. If a large number of the readers of the paper were conversant with the facts in reference to the Crilley deal and understood one or more of the articles to refer thereto, and the facts were-proved as alleged in the answer, the defense of justification-would be at least partially established as to such charge. It is manifest that, if one half of the readers of the paper understood the language to refer to a transaction that actually took place, the plaintiff would not be injured to the same extent that he would be wronged if all of the readers understood the articles to charge a crime of which he was not guilty. Having reached the conclusion that the articles could not reasonably be understood as referring to the 1897 garbage contract, evidence tending to show the notoriety of that transaction was immaterial. The evidence was not admissible as proof of mitigation. The defendants could not mitigate damages by showing specific acts of wrongdoing on the part of the plaintiff. Such evidence should be confined to the general bad character of the plaintiff and to legitimate proof tending to disprove malice. Storey v. Early, 86 Ill. 461; Newell, Libel & S. 890.

7. It is urged that the court erroneously excluded a portion of one of the alleged libelous articles, which reads as follows:

“When the question was asked, ‘What did Mr. Pfister do with the money V I was not inclined to believe that he had used it in bribing the council, for there are other and more insidious forms of corruption. Every man who knows anything about the bidding on and the letting of city contracts knows that sometimes money is used to buy off other bidders. I am not saying that Mr. Pfister used it in that way, but that might have been the way he used it.”

The record fails to disclose that the quoted portion of the article was offered in evidence, hence it could not have been excluded.

8. After informing the jury that a corporation was a legal •entity, and as such could have no malice towards any one aside from that of the party who represented it, the court •said:

“The defendant Mr. Myrich was the corporation’s employee, the managing editor of the paper, and responsible for the articles published in it; and your only inquiry on this branch of the case is, Was Mr. Myrich actuated by malice in having the article published ? If he was, punitory damages may be assessed against both defendants.”

The pertinent inquiry in connection with this instruction is, Was the court in error in imputing the malice of Mr. My-rick, if any he had, to the corporation, as a matter of law? In a large number of cases it is held that exemplary damages cannot be recovered against the principal for the wrongful and malicious act of the agent, neither authorized nor ratified by the principal. Milwaukee & M. R. Co. v. Finney, 10 Wis. 388; Craker v. C. & N. W. R. Co. 36 Wis. 657; Bass v. C. & N. W. R. Co. 42 Wis. 654; Patry v. C., St. P., M. & O. R. Co. 77 Wis. 218, 46 N. W. 56; Mace v. Reed, 89 Wis. 440, 62 N. W. 186; Robinson v. Superior R. T. R. Co. 94 Wis. 345, 68 N. W. 961; Bryan v. Adler, 97 Wis. 124, 72 N. W. 368; Vassau v. Madison E. R. Co. 106 Wis. 301, 82 N. W. 152; Gaertner v. Bues, 109 Wis. 165, 85 N. W. 388; Rueping v. C. & N. W. R. Co. 116 Wis. 625, 93 N. W. 843. The •same rule is adhered to in an action to recover damages for alleged libel. Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760. The only case we are aware of that even suggests a contrary rule is Allen v. News P. Co. 81 Wis. 120, 50 N. W. 1093. The correctness of the instruction as a proposition of law depends upon whether the same rule should be applied where the malicious act is done by the officer of a corporation intrusted with the management of its business that is applied in the case of an ordinary agent or employee. We do not ■deem it necessary to decide such a question in this case.

We think the court might well have instructed the jury that, if it found Mr. Myrick was actuated by malice, his malicious acts were ratified if not authorized. Yery broad powers were conferred on Mr. Myrick in respect to the management and policy of the newspaper. He had the immediate ■and active charge, management, and control thereof, as well as of all matters published therein. He had all the authority the corporation itself might exercise in determining what •should be published and what should be excluded. It would be illogical to say that the governing body of the corporation, in conferring such power, intended that it should be abused. But, having conferred the power, the corporation could not ■escape liability by saying that no authority would be found in the record of its proceedings empowering Mr. Myriclc to-libel any one, and neither would a ratification of any libel be found therein. The publication of these articles extended over a series of seven days. The paper was read by the-directors of the corporation. Apparently no protest was-made by any director against the publication of the articles, and no suggestion was made that such publications should cease, except that Mr. Upham found fault, in a general way, with the character of the journalism carried on by the Milwaukee papers. This action was not commenced for a month after the publications began, and in the interim no repudiation was made of the acts of Mr. Myriclc. The action was-not tried until more than two years after it was begun, but no retraction or repudiation of the publications was ever made by the corporation. On the contrary, it answered, alleging that the publications were true. While such pleading, when the defense fails, is not proof of malice under sec. 4201, Stats. (1898), it has some force as bearing upon the ratification of Mr. Myriclc s acts. Finally, Mr. Myriclc was continued in the employ of the corporation, without any curtailment of powers, down to the time of the trial. It would appear, from some of the decided cases at least, that this circumstance is in itself conclusive proof of ratification. Bass v. C. & N. W. R. Co. 42 Wis. 654, 677; Pastry v. C., St. P., M. & O. R. Co. 77 Wis. 218, 227, 46 N. W. 56. The-cases of Robinson v. Superior R. T. R. Co. 94 Wis. 345, 350, 68 N. W. 961, and Cobb v. Simon, 119 Wis. 597, 606, 97 N. W. 276, hold that it is evidence of ratification. However this may be, we think that in this case whatever malice the defendant Myriclc was guilty of was also attributable to-the corporation, by reason of the character of the authority given in the first instance, and by reason of the subsequent conduct of the corporation.

9. In reference to the article published on the morning of August 5th Mr. Myriclc was asked: “Now, then, was that article published by you with any malice or evil intent toward Mr. Pfisterf " To wbicb tbe witness replied: “None whatever.” Tbe witness was then asked wbat was tbe purpose and intention with wbicb tbe article was published. Wbat was bis motive in tbe publication of tbe article ? Wbat was tbe purpose and intention of tbe publication of tbe other articles set out in tbe complaint ? Wbat was bis motive in tbe publication of such articles? Were tbe facts and circumstances connected with tbe so-called garbage deal within bis knowledge at tbe time tbe article of August 5, 1905, was published ? Did tbe witness know according to common report that at or prior to August 5, 1905, plaintiff was connected with tbe so-called garbage deal? Did tbe witness know according to common report that the sum of $25,000 bad been deposited with tbe plaintiff in tbe summer of 1897 for tbe purpose of buying off tbe firm of Crilley & O’Donnell from tbeir contract in order to procure tbe contract for tbe Wisconsin Eendering Company? Wbat did tbe witness know as to any effort being made in tbe summer of 1897 to buy off tbe firm of Crilley & O’Donnell from a contract for tbe disposal of garbage? And wbat did tbe witness know of any money paid by Pfister to Crilley for tbe purpose of disposing of the contract with tbe city for tbe disposal of garbage?

Objections were interposed to each of tbe foregoing questions except tbe first, and were sustained. Tbe witness was permitted to expressly negative malice in reference to the publication of August 5th, and presumably would have been permitted to negative malice as to other publications bad questions been propounded directly asking whether or not tbe defendant was actuated by malice in making such publications. It was proper to permit tbe defendant to testify that be was not actuated by malice or evil intent toward the plaintiff. Wilson v. Noonan, 35 Wis. 321; Sherburne v. Rodman, 51 Wis. 474, 8 N. W. 414; Plank v. Grimm, 62 Wis. 251, 22 N. W. 470. Tbe rule as stated in Jones, Ev. (2d ed.) § 170, is that “whenever tbe motive, intention, or belief of a person is relevant to the issue, it is competent for such person to testify directly upon that point, whether he is a party to the suit or not.”

We do not think the court erred in refusing to permit the ■examination to extend further than to allow the defendant to make a direct and explicit denial of malice. Had the examination been allowed to proceed further, it is apparent that it would have raised a number of collateral issues. The defendant was asked as to whether common report connected the plaintiff with the garbage deal, and as to whether it was commonly reported that $25,000 had been deposited with the plaintiff for the purpose of buying off the firm of contractors, and other matters that might tend, in a measure, to support the testimony of the defendant to the effect that he was not actuated by malice, but which at the same time would bring into the case a number of side issues not properly there for any other purpose. Some of the questions, too, were objectionable on the ground that the answers thereto would at least have a tendency to place before the jury the defendant’s construction of the language used in the libelous articles that were made the basis of the action. Such questions were clearly improper under the decision of the court in Wilson v. Noonan, supra.

10. Error is alleged because of the exclusion of the testimony taken before the grand jury. It is argued that the evidence was admissible in explanation, support, and justification of the matter set forth in the first and second causes of action in relation to testimony before the grand jury. The evidence could not be received to establish the fact that the plaintiff was guilty of larceny. The witnesses to prove such fact should be produced in court so that the plaintiff would have the opportunity of cross-examination.'

The article which furnished the basis for the second cause of action set forth that: >

“The grand jury had no proof at the time it returned the indictment that Mr. Pfister committed bribery. It did have plenty of evidence that lie accepted the $14,000 from tbe rendering company and that be did not return it to tbe Wisconsin Rendering Company as it was agreed be should if it was not used. Therefore be was indicted for larceny as bailee.”

A portion of tbe article upon which tbe first cause of action is based sets forth tbe names of tbe witnesses, and, to some extent, tbe character of tbe evidence produced before tbe grand jury and which resulted in tbe indictment. If it were charged as libelous to say that tbe grand jury acted on ample evidence, tbe testimony taken before it would be competent to prove that it did so act. What tbe plaintiff complains of in tbe first and second causes of action is that tbe defendant corporation used 'language that was capable of meaning, and was understood by tbe readers of tbe newspaper to mean, that plaintiff was in fact guilty of tbe crime of theft, or that, if be was not guilty of such offense, then be was guilty of tbe crime of bribery. Tbe proof offered did not meet any charge that tbe plaintiff relied on to establish bis case and was therefore, we think, correctly excluded.

11. Tbe court instructed tbe jury as follows:

“And if it appears that Mr. Myrick has attempted, but failed, to prove tbe truth of any defamatory statement in any of tbe articles complained of, you may consider that fact as bearing also upon tbe question whether be was or not actuated by malice or ill will in publishing tbe statement.”

Tbe particular criticism made on this portion of tbe charge is that tbe court should have instructed tbe jury that an attempt to prove justification was not evidence of malice unless such attempt was made in bad faith. Tbe following oases are cited in support of this contention: Marx v. Press P. Co. 134 N. Y. 561, 31 N. E. 918; Willard v. Press P. Co. 52 App. Div. 448, 65 N. Y. Supp. 73; Upton v. Hume, 24 Oreg. 420, 33 Pac. 810; Distin v. Rose, 69 N. Y. 122.

In New York it is held that where tbe answer sets up justification and tbe evidence fails to sustain tbe plea, such plea cannot be considered in enhancement of tbe plaintiff’s damages unless it is interposed in bad faith. Distin v. Rose, supra; Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457. In Marx v. Press P. Co., supra, the, court charged the jury that there was no evidence of malice save that shown by the-publication of the article and the plea of justification, and it was held that the instruction was not erroneous; no request having been made to instruct the jury that, if the plea was interposed in good faith and not wantonly, no damages should be assessed because of its having been made. In Willard v. Press P. Co. 52 App. Div. 448, 65 N. Y. Supp. 73, it is held that an instruction which did not limit the jury to accepting as evidence of malice only such pleas as were interposed in bad faith was erroneous. Substantially the same doctrine is held in Oregon. Upton v. Hume, supra. All these decisions are made under statutes similar to our sec. 4201, which provides that a plea of justification, though not maintained by the evidence, shall not in any case be of itself proof of the malice charged in the complaint. It will be observed that the instruction of the court was directed to the evidence offered under the plea of justification and not to the plea itself. The statute provides that the answer itself shall not be considered proof of malice, even though it is not maintained. The court instructed the 'jury that if the defendants attempted, but failed, to prove the truth of the defamatory matter complained of, such fact might be considered as bearing on the question of ill will. The majority of the court is of the opinion that the charge- was correct, and that an unsuccessful attempt at justification is a proper circumstance for the jury to consider in determining whether the defendant was actuated by malice. Personally, the writer of this opinion entertains the view that this construction of the statute is too narrow, and that where a defendant pleads, and attempts in good faith to justify, but fails to do so, such attempt should not be made the basis of aggravating the plaintiff’s damages. Mr. Justice Siebecker also concurs in this view. I should hesitate, however, to say that what I con- ' ceive to be the error of the court was of sufficient materiality to warrant a reversal of the judgment.

12. Nine causes of action were originally set out in the ■complaint. Three of these were discontinued before trial .and proof was offered under the remaining six. The case was submitted to the jury on a general verdict. Such submission is alleged to be erroneous. We think that a general ■verdict may properly be returned in a case where a plaintiff •seeks to recover on several different causes of action. The ■ease of Sletten v. Madison, 122 Wis. 251, 99 N. W. 1020, relied on by the appellant, holds that such a verdict may be returned in some cases, but does not attempt to define what ■class of cases may properly be so submitted and what may .not be. As a general proposition we see no objection to submitting a general verdict in such a case, where the jury can be properly instructed so as to protect the rights of the defendant and to avoid the objections that are generally urged .against such a form of verdict in such a case. It is urged ■that a general verdict was improper in the instant case because some of the jurors might find for the plaintiff on one ■cause of action and others on different causes, and the verdict would not express the unanimous judgment of the jurors as to any particular cause of action. It is further urged that in the assessment of damages the verdict may be the result ■of widely variant opinions among jurors as to the amount that should be assessed on account of each particular one of the publications found to be libelous, while the aggregate result might meet the views of all. In the event of a submission such as was here made, the jury should, in substance and effect, be instructed that all jurors must be agreed to find for the plaintiff as to the existence of each alleged libel before any damages could be assessed on account of the same, and that all must be agreed as to the quantum of damages that should be assessed as compensation for such libel. Such is the effect of the decisions of this court in Boldt v. State, 72 Wis. 7, 16, 38 N. W. 177; Sletten v. Madison, 122 Wis. 251, 99 N. W. 1020; and Vogel v. State, 138 Wis. 315, 119 N. W. 190. The question whether or not error resulted from the submission of a general verdict depends uxion whether the court correctly instructed the jury. The verdict may have-been arrived at in a manner not subject to criticism. If the instructions were correct, no error followed. If, by the instructions, the jurors were permitted to wander, and arrive-at different conclusions which produced the same result in the aggregate, error was committed. It seems to us, however, that the error, if any, must be either due to the affirmative language used in the charge as given or to the negative action of the court in failing to properly caution the jurors as to how they should proceed in reaching a verdict. This court has uniformly refused to reverse judgments for erroneous instructions where no exception was taken thereto, and has likewise refused to reverse judgments because of failure to instruct where no request for instruction was made. A general verdict being proper in this case, if accompanied by appropriate instructions, we are unable to see how failure to instruct, or error in the instructions given, should be treated differently from like errors in the ordinary case. No demand was made by defendant for a special verdict. No instruction was asked that was calculated to reach the point under discussion, and, if error resulted, it must he because some portion of the charge was erroneous to which exception was taken. A careful reading of the charge fails to convince us-that any affirmative error was committed in giving it. There is nothing in it that suggests that the jurors need not all agree upon the particular libel, or the damages sustained by reason thereof, before a verdict for the plaintiff might be returned. Indeed, we think the language of the court very fairly informed the jurors that all must be agreed upon the-existence of each specific libel and of the damages to be returned in consequence thereof, or else the plaintiff could not recover on account of the same. It is true that the charge might be made a little more direct and specific upon this point, and that there is a mere possibility that it was not sufficiently explicit to avoid harm; but, under the decisions of this court, we think that in the absence of a request for more specific instruction no error was committed. Lela v. Domaske, 48 Wis. 623, 4 N. W. 794; Weisenberg v. Appleton, 26 Wis. 56; Kelly v. Houghton, 59 Wis. 400, 18 N. W. 326; Newton v. Whitney, 77 Wis. 515, 46 N. W. 882; Nat. Bank v. Ill. & Wis. L. Co. 101 Wis. 247, 77 N. W. 185.

13. It is urged that the damages are excessive and that the judgment. should be reversed for that reason. We are unable to say that the amount of the recovery is such as to indicate passion or prejudice on the part of the jurors; and,, under the rule adopted by this court as to when judgments will be reversed because of excessive damages, we do not think the judgment in the present case should be interfered with.

By the Court. — Judgment affirmed.

Timlin, J., took no part.

Case Details

Case Name: Pfister v. Milwaukee Free Press Co.

Court Name: Wisconsin Supreme Court

Date Published: Jun 3, 1909

Citation: 139 Wis. 627

Court Abbreviation: Wis.