Bradley v. Cramer

18 N.W. 268, 59 Wis. 309, 1884 Wisc. LEXIS 27

• Court: Wisconsin Supreme Court
• Decided: January 8, 1884
• Status: Published

Opinion

Oassoday, J.

It is settled that an action for libel may be sustained for words published which tend to bring the plaintiff into public hatred, contempt, or ridicule, even though the same words spoken would not have been actionable. Lansing v. Carpenter, 9 Wis., 542; Cary v. Allen, 39 Wis., 482; Cottrill v. Cramer, 43 Wis., 245. Written slander is necessarily attended with such deliberation, and its publication is so well calculated to produce permanent mischief, that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse. Eolkard’s Starkie, § 154. Hence, every written publication which implies, or may be generally understood to imply, reproach, dishonesty, scandal, or ridicule, to any person, is a libel. Id., §§ 155-, 156. Such written publication, though not charging a punishable offense, is nevertheless libelous, if it falsely and maliciously tends to subject the party to whom it refers, to social disgrace, public distrust, hatred,, ridicule, or contempt. Villers v. Monsley, 2 Wils., 403; Cox v. Lee, L. R. 4 Exch., 284; Miller v. Butler, 6 Cush., 72; State v. Spear, 13 R. I., 324; Cooper v. Greeley, 1 Denio, 359. Words employed in an alleged libel are, of course, to be con strued by courts and juries in the plain and popular sense in which other people would naturally understand them. Folkard’s Starkie, § 155; Montgomery v. Deeley, 3 Wis., 709; Weil v. Schmidt, 28 Wis., 137; Campbell v. Campbell, 54 Wis., 94; 1 Denio, 358; More v. Bennett, 48 N. Y., 475. So, in construing the article in question, the scope and object of the whole article is to be considered, and such construction put upon its language as would naturally be given to it. Spencer v. Southwick, 11 Johns., 592; 1 Denio, 358; 48 N. Y., 476.

Counsel for the defendant is undoubtedly right in claiming the rule to be, in effect, “that it is for the judge to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to decide whether such meaning is truly ascribed to it.” That is the rule held in Blagg v. Sturt, 10 Ad. & El. (N. S.), 899, by the court of Exchequer Chamber, affirming the judgment of the Queen’s Bench, as announced by Lord Chief Justice DeNMAN, and quoted and followed by this court in Campbell v. Campbell, supra. That rule so announced has recently received the express sanction of the House of Lords. Capital & C. B. L. v. Henty, L. R. 7 H. L., 744. So this court has expressly sanctioned the rule contended for by the same counsel, to the effect that it is not the office of an innuendo to enlarge the meaning of the words employed in the publication, but merety to point out their application to the facts previously alleged. Weil v. Schmidt, supra; Campbell v. Campbell, supra; Langton v. Hagerty, 35 Wis., 151. This is abundantly supported by the numerous cases cited in the brief of counsel. Among these are Fry v. Bennett, 5 Sandf., 65; Fleischmann v. Bennett, 87 N. Y., 238; Peterson, v. Sentman, 37 Md., 153; Dyer v. Morris, 4 Mo., 215; Gosling v. Morgan, 32 Pa. St., 273; Goldstein v. Foss, 4 Bing., 489. See, also, Coburn v. Harwood, 12 Am. Dec., 37, and note; Van Vechten v. Hopkins, 5 Johns., 211; S. C., 4 Am. Dec., 339, and note. Perhaps there is no better illustration of the rule than the recent case in the House of Lords, above mentioned, where it was held that, in their natural meaning, the words “H. & Sons hereby give notice that they will not receive in payment checks drawn on any of the branches of the bank,” were not libelous, and that the inference suggested by the innuendo, to the effect that the plaintiff was insolvent, was not such as reasonable persons would draw.

Whenever it becomes necessary to enlarge the meaning of the words 'employed in the publication in order to make them libelous, the complaint should, of course, contain the necessary averments or colloquium of facts showing that under the circumstances accompanying the publication the article was in fact libelous. In the leading case of Van Vechten v. Hopkins, supra, the majority opinion sums up the office of an averment, colloquium, and innuendo respectively, thus: “ The use in pleading of an averment is to ascertain that to the court which is general or doubtfully expressed, so that the court may not be perplexed of whom or of what ifc ought to be understood, and to add matter to the plea to make doubtful things clear. A colloquium serves to show that the words were spoken in reference of the averment. An innuendo is explanatory of the subject matter sufficiently expressed before; and it is explanatory of such, matter only, for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain.” See, also, Bloss v. Tobey, 2 Pick., 328; Carter v. Andrews, 16 Pick., 6; Snell v. Snow, 13 Met., 278; S. C., 46 Am. Dec., 730, and note; Kinney v. Nash, 3 N. Y., 182; More v. Bennett, 48 N. Y., 475.

Under our statute, however, it is unnecessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matters out of which the cause of action arose, but it is sufficient to state generally that the same was published concerning the plaintiff, and, if such allegation be controverted, the plaintiff is bound to establish on the trial that it was so published. Sec. 2677, R. S. Under this section the general averment that the article set forth was published concerning the plaintiff, dispenses with allegations of such extrinsic facts as would otherwise be necessary to show the application of the words employed to the plaintiff; but it does that merely, and does not, as we have already seen, remove the necessity of an averment, colloquium, or innuendo where they are essential to show the meaning of the words themselves. Pike v. Van Wormer, 5 How. Pr., 174; S. C., 6 How. Pr., 100; Van Slyke v. Carpenter, 7 Wis., 173; 87 N. Y., 238. But extrinsic averments are not necessary where the words used, giving them their natural construction, tend to injure the reputation of the subject of them, and expose him to hatred, contempt, or ridicule. More v. Bennett, supra; Pike v. Van Wormer, 6 How. Pr., 100. So it was held by this court in Langton v. Hagerty, supra, that where there is no ambiguity in respect to the actionable quality of the language employed, nor as to the person whom it concerns, no allegation by way of inducement or colloquium is necessary. 6 How. Pr., 100.

Such being the principles applicable to the case, we are to determine in the light of them whether the words employed in the article in question, construed in the plain and popular sense in which they would be naturally understood, tended, when taken by themselves, to subject the plaintiff to social disgrace, public distrust, hatred, ridicule, or contempt; and if not, then whether they so tended when aided by the aver-ments, statements, and innuendoes contained in the complaint. It is alleged that the plaintiff is the widow of D. 0.' Bradley, who committed suicide at a time and place mentioned ; that the defendants maliciously published the article set forth concerning the plaintiff in the Evening Wisconsin. The article purports to give the probable cause of the husband’s suicide, the manner of his death, the nature and place of his employment, the capacity in which he was employed at the time, and by whom. It also states that the son was sent by the suicide’s employer to Chicago, and all his expenses paid while he learned the business, and that on the lad’s return he was allowed a pretty good salary. Up to this point in the article, as stated by counsel for the defendant, nothing is published of or concerning the plaintiff; but those statements serve to explain and make clear and unambiguous-the balance of the article, for, in construing it, we must consider its whole scope and object and then put such construction upon its language as would naturally be given to it. Thus construed, and the words employed in stating the methods which enabled the plaintiff to pocket a part of the wages of the son seem to be capable of the meaning ascribed to them in the accompanying innuendo. Whether such meaning was truly ascribed to the words employed is for the jury and not for the court. And, so construed, we find ■other features of the article which of -themselves, in our judgment, tend to subject the plaintiff to some of the things which make the publication libelous upon its face, within the rules of law above stated. But the case is here on demurrer, which, for the purposes of this appeal, admits all the allegations of the complaint to be true. Whether they are true, or there were any mitigating circumstances attending the publication of the article, are questions for future consideration, and hence we refrain from any analysis of such other features in detail, in order that no discussion of ours may unnecessarily tend to prejudice either party upon the trial.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.