| Wis. | Mar 14, 1916
The following opinion was filed January 14, 1916:
A number of errors in the charge of the court are alleged, but it seems to us that we can attain greater clarity by treating the case abstractly and stating the general principles applicable than by taking up the alleged errors in detail
It is recognized that there is a disagreement in the authorities on the question whether false statements concerning candidates for office made without malice and in good faith are privileged. In some jurisdictions it is held that all matters, true or false, having a bearing on the fitness of a candidate may be published without liability if it be shown that they were published without malice, in good faith, and in the honest belief that the facts stated were true. Briggs v. Garrett, 111 Pa. St. 404, 2 A. 513" court="Pa." date_filed="1886-01-25" href="https://app.midpage.ai/document/briggs-v-garrett-6238252?utm_source=webapp" opinion_id="6238252">2 Atl. 513; Coleman v. MacLennan, 78 Kan. 711" court="Kan." date_filed="1908-11-07" href="https://app.midpage.ai/document/coleman-v-maclennan-7898268?utm_source=webapp" opinion_id="7898268">78 Kan. 711, 98 Pac. 281, 20 L. R. A. n. s. 361. We deem the other view, however, to be supported not only by our own decisions but by the better reason and by the great weight of authority in other courts. Newell, Slander & L. (3d ed.) §§ 633-636; 25 Cyc. 402-405 and notes; Post P. Co. v. Hallam, 59 F. 530" court="6th Cir." date_filed="1893-12-09" href="https://app.midpage.ai/document/post-pub-co-v-hallam-8848544?utm_source=webapp" opinion_id="8848544">59 Fed. 530.
It is true that in certain classes of cases the law of conditional privilege will protect one who makes an entirely false charge, as, for instance, one who communicates to an officer of the law a charge of crime against another, in good faith, believing it to be true, and acting simply from a sense of public duty. Joseph v. Baars, 142 Wis. 390" court="Wis." date_filed="1910-04-05" href="https://app.midpage.ai/document/joseph-v-baars-8189882?utm_source=webapp" opinion_id="8189882">142 Wis. 390, 125 N. W. 913. The reason for this is very plain, and it is equally apparent that it is not present in such cases as the one before us.
Now in the present case the first question for the jury was what meaning the article carried to the readers of the paper. In view of the political conditions in the state in 1910 and at the time of the publication as shown by the evidence, did this article convey the idea to the readers of the paper (1) that the plaintiff received and took part in the unlawful distribution of a part of a political corruption fund in the primary campaign of 1910, or (2) that he sold his political influence and surrendered his honest belief for money in that campaign ? If it carried these ideas or either of them it was libelous unless proven to be true. If, however, it simply conveyed the idea that the plaintiff received and distributed in lawful ways a part of a large political campaign fund and
Tbe propositions just referred to are really tbe only statements of fact in tbe article, but there is a comment upon them which stands upon an entirely different basis, and that is tbe thinly veiled comparison of tbe plaintiff to Judas Iscariot. This is not a statement of fact but a comment or criticism. It likens tbe plaintiff, not to an ordinary turncoat, but to the man who, in tbe estimation of tbe Christian world, committed tbe greatest crime in history by selling tbe life of bis divine Master for money.-
It requires no argument to prove that this is a jibe, a contemptuous insult, and not fair criticism of any type; hence-it is not privileged. Curtis v. Mussey, 6 Gray, 261. Being-libelous on its face, the only question to be submitted to tbe jury in connection with it is tbe question of tbe amount of' damages. Thus the defense of conditional privilege drops, entirely out of tbe case.
Returning now to the consideration of tbe questions arising with regard to tbe statements of fact first herein discussed, if tbe jury find those statements not to carry a libelous meaning they also drop out of tbe case, but in case the-jury find that they carry tbe libelous meaning above referred to, tbe question will then arise, Are they, or is either of them, substantially true? This question, however, will only arise in case justification is properly pleaded, which it seems is not tbe case at present.
It is doubtless true that in order to be a complete defense a justification must be as broad as tbe libel, and that an allegation of tbe truth of a part of tbe facts alleged in tbe libel can: operate only as a partial defense. In tbe present case tbe defendants are compelled to admit that tbe plaintiff did not in,
While there was no law in 1909 limiting the amount which could be legally spent by candidates for public office (the first law on that subject being, ch. 650, Laws 1911: secs. 94-1 to 94-38, Stats. 1913), there were many ways in which money could be corruptly and unlawfully used. While men might doubtless be hired to do lawful political labor it was unlawful to buy votes, either directly or indirectly under pretense of paying for work or by the use of •other subterfuges. It was, with certain exceptions, unlawful .for any person to pay or agree to pay money to secure the
We do not deem it necessary to review the charge of the-court at length. It contained at least two vital errors which render a new trial necessary, viz. (1) it did not inform the jury that the comparison to Judas was libelous as matter of' law and not privileged, and (2) it told the jury in substance that if the statements were made in good faith and in honest belief in their truth they were privileged whether true or-false.
The question was somewhat debated in the argument of' the case whether the fact that the newspaper in question, though primarily a local county paper, had some circulation outside of Waupaca county would prevent the successful interposition of the defense of privilege under the rule as to excessive publication announced in Buckstaff v. Hicks, 94 Wis. 34" court="Wis." date_filed="1896-09-22" href="https://app.midpage.ai/document/buckstaff-v-hicks-8185282?utm_source=webapp" opinion_id="8185282">94 Wis. 34, 68 N. W. 403.
The view taken of the case renders it unnecessary to decide-this question, but we deem it not improper to remark that the-rule as stated in the Buckstaff Case seems unquestionably extreme. Carried to its logical result it means that a distinctively county newspaper with some incidental outside circulation is protected by no privilege when it honestly discusses the qualifications of candidates for county offices, and this would mean practically that there could be no newspaper-discussion of the subject because it is believed that all local papers of any influence have more or less outside circulation. While we do not reach the question in this case, we feel jus-
By the Qourt. — Judgment reversed, and action remanded; for a new trial.
A motion for a rehearing was denied, with $25 costs, on. March 14, 1916.