168 Wis. 196 | Wis. | 1918
By its verdict the jury found that the article in question falsely represented, in effect, that the plaintiff had (a) committed the crime of assault and battery; (b) that he had not obtained a proper medical education, training, or diploma and that he was a quack doctor practicing as such; and (c) that he was performing his duties as mayor of Stevens Point in a ridiculous, foolish, and silly manner and was a subject of ridicule and contempt..
The defendant contended that the article was not subject to such construction. The jury found that it was, the trial court expressed his approval of the findings, and we are of the opinion that the article is more than susceptible to such construction. The contention of the defendant that the article was justified in such respects by the facts is also negatived by the jury upon abundant proof. It is needless for us to say that so far as the article constitutes a reflection upon the plaintiff in his professional capacity, or accuses him of crime, it is libelous per se and, as seen, all available defenses thereto were repudiated by the jury.
The defendant urges that the circumstances gave rise to an occasion of conditional privilege, because the plaintiff is a public officer, and the article deals with his official acts. While it is true that plain speaking and severe and caustic comment may be indulged concerning the acts of a public officer, his election to office does not bare him to- the shafts of falsehood and slander. His good name and his reputation in his profession and as a law-abiding citizen are protected after as well as before he took the oath of office. Conceding that the gist of the article deals with plaintiff’s offi
Is the article, so far as it relates specifically to plaintiff’s official conduct, privileged? The jury found that a person of average comprehension, on reading the article, would have understood that it was therein stated and charged that plaintiff was performing his duties as mayor of Stevens Point in a ridiculous, foolish, and silly manner and was a subject of ridicule and contempt; that the article was not a fair comment on the acts of the plaintiff in such capacity; and that the defendant was not actuated by express malice in causing said article to be published. In some jurisdictions it is held that' all matters, true or false, having a bearing on the'fitness of a public officer or candidate for public office 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. 17 Ruling Case Law, pp. 354, 355; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. n. s. 361. Here the immunity is not so sweeping. While the citizen may speak plainly, indulge in extravagant expressions and caustic and severe comments, if the facts warrant, concerning the fitness, qualifications, and official conduct of men in whom he is interested as a citizen, he cannot do so in disregard of the facts. He cannot malign, falsify, insult, or hold up to public hatred, contempt, or ridicule unless his statements be warranted by the facts. Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403;
There is another reason why the article is not privileged. The Milwaukee Sentinel, in which the article appeared, is a metropolitan daily newspaper published in the city of Milwaukee and circulates not only throughout the state of Wisconsin but extensively outside of the state. An insignificant proportion of its circulation is within the city of Stevens Point, the only place where its readers had a legitimate interest in the official conduct of the mayor of that city. While this.court has held that a county newspaper is privileged to discuss the qualifications of a candidate for county office, even though it has an incidental circulation outside of the county (Arnold v. Ingram, supra; Putnam v. Browne, supra), and the same rule would apply of course to county officers, a different situation is presented where a metropolitan paper with a state-wide circulation discusses the official conduct of an officer of a municipality other than that in which the paper is published. This is especially true where an inconsequential proportion of its circulation is in such municipality. In' such cases the great bulk of its readers have no direct or legitimate interest in the public conduct of ■the officer whose record is under discussion, and this is one of the fundamental principles upon which the doctrine of privilege rests. The general rule deducible from the authorities may be stated to be: If a newspaper, published primarily for a given constituency, such as county or state, church or lodge, have a small circulation outside such con
Defendant complains because the court admitted in evidence articles concerning plaintiff appearing in other issues of the Milwaukee Sentinel. The question of the express malice of the defendant was in issue at the trial. It is well settled that statements made by a defendant in an action for libel or slander at other times and upon other occasions are admissible as bearing upon the question of express malice. Born v. Rosenow, 84 Wis. 620, 54 N. W. 1089; Earley v. Winn, 129 Wis. 291, 109 N. W. 633; State ex rel. Mengel v. Steber, 154 Wis. 505, 143 N. W. 156. There was no error in the admission of the articles mentioned.
During the trial defendant called a witness who testified that the two men arrested at the time of the raid on the Soo Hotel, mentioned in the article, we're discharged by the court upon their trial and that it was rumored in Stevens Point that the Soo- Hotel affair was a frame-up to fool the mayor. The court then permitted the plaintiff to prove that these two men were acquitted as a result of perjured testimony, and that two- witnesses who- testified in that action on their behalf were subsequently convicted of perjury because of their testimony given in that case. Defendant assigns this as error. We do not see that any of this testimony was very material. If material at all, it was upon the question of express malice and as tending to show the good faith of the defendant in the publication of the article. The jury found in favor of the defendant on the question of malice, and as the testimony upon this subject, that of the plaintiff as well
The defendant further claims that the verdict, even as reduced by the court, is excessive. We do not think so. The article constituted a serious reflection upon the plaintiff in his professional and official capacities. The jury was warranted in assessing substantial damages. We regard $1,800, the amount to which the verdict was reduced by the court, as conservative.
By the Court. — Judgment affirmed.
