Werner v. Ascher
56 N.W. 869
Wis.
1893
Check Treatment
WiNslow, J.

The trial court held that the complaint showed on its face that the alleged libel was privileged, and this is the only question presented. In support of the ruling it is said that the complaint shows this paper to be a complaint made to the town board of supervisors, under sec. 1558, E. S., for the purpose of obtaining a revocation of plaintiff’s license as a saloon keeper; 'that this proceeding is judicial in its nature, and therefore the paper complained of is privileged. Probably, if the complaint showed that the only publication of the paper was its presentation to the board of supervisors of the town of Lake, the ruling of the trial court would be right, following the rule laid down in Larkin v. Noonan, 19 Wis. 82. The difficulty is, however, that the complaint charges no such thing. It simply alleges that the paper was maliciously written and published. We think this allegation must be held to rebut the idea that the paper was simply presented to the town board of supervisors. Certainly, under this allegation, it would be entirely competent for the plaintiff to prove that the paper was printed and distributed about the streets or posted on the bill boards, or otherwise circulated among the people for purposes of private spite, and not in a legitimate and bona fide attempt to institute a proceeding for the revocation of plaintiff’s license. If this was the case, the fact that it was addressed to the board of supervisors, or was in the form of a complaint to revoke plaintiff’s license under the statute, would not make it privileged. State v. Burnham, 9 N. H. 34. Upon demurrer ore tenus the court is inclined to give a more liberal construction to the pleading in favor of the pleader than upon demurrer regularly interposed, and under this rule we think the complaint should be construed as charging an unauthorized and improper publication or circulation of the paper. Upon •the proofs when introduced, it may perhaps appear that *352the paper is privileged, but it does not so appear on the face of the complaint.

By the Court. — Judgment of the superior court reversed, and action remanded for a new trial.