Downer v. Tubbs

139 N.W. 820, 152 Wis. 177, 1913 Wisc. LEXIS 60

• Court: Wisconsin Supreme Court
• Decided: January 28, 1913
• Status: Published

Opinions

Marshall, J.

We are unable to, efficiently, follow the logic of counsel for respondents in support of the decision complained of. It seems to proceed upon the theory that a plaintiff must state a cause of action with technical accuracy and unmistakable clearness in order to satisfy the test of sufficiency. Certainty to a common intent is all that is necessary, generally, even, on a motion to make more definite and certain. On a challenge for insufficiency every reasonable intendment is to be taken in favor of the pleading, all facts deemed pleaded which are set foxth expressly or are suggested by fair inference from the particular and general statements, and the pleading held good for any judicial relief shown to be merited whether within the prayer for relief or the particular intent of the pleader. Counsel argue as if it were required to be “certain to a certain intent in particular, precluding all argument, inference, and presumption against the party pleading,” contrary to the letter and spirit of the Code and the established practice. In an action for libel the pleading must be tested by the liberal rules applicable in general. We will measure the complaint from that viewpoint.

This is elementary: “Any malicious publication, by printing or writing, or by signs or pictures, which accuses a person of a crime, blackens his character, or tends to expose him to public ridicule, contempt, or hatred, is libelous;'' Cramer v. Noonan, 4 Wis. 231; Scofield v. Milwaukee Free Press Co. 126 Wis. 81, 105 N. W. 227; Wandt v. Hearst's Chicago American, 129 Wis. 419, 109 N. W. 70; or any such conduct which tends to prejudice a person in his legitimate business or imputes to him want of official integrity; Wilson v. Noonan, 23 Wis. 105; or causes him, in his official capacity, to be looked upon with distrust and bring him into disgrace; Wilson v. Noonan, 23 Wis. 105; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000.

In connection with the definition, sec. 2677, Stats., is important. It expressly dispenses in its letter with necessity for any statement of extrinsic facts, except where necessary to show the meaning of words used. Features formerly required to show application to the plaintiff, are satisfied, commonly, by the general statement that the publication was made concerning the plaintiff. In case of the language being so ambiguous as not, of itself, to reasonably point to the plaintiff, extrinsic facts are required; not to enlarge the meaning, but to enable one to read in connection with environing circumstances giving direction to tbe libel. Otherwise such ■ facts are only necessary to show that the language used, as it would ordinarily be understood under the circumstances, fairly suggests plaintiff as the objective, and includes the essential libelous elements.

The pleading here contains the general statutory allegation. It states facts calculated to clear up any ambiguity as to whether it is applicable to the plaintiff and capable of the libelous meaning ascribed. If there be ambiguity in it, such facts are material and possibly vital. Does the complaint, as a whole, giving to the alleged libelous words the ordinary meaning which might fairly be ascribed to them under the circumstances, show that they are fairly capable of being considered as pointing to plaintiff and having the libelous meaning ascribed to them or some other libelous meaning? That is the question. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268; Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724.

To aid as to the application of the article to respondents and capability of its being libelously understood, the pleader as, in general, is indicated in the statement, in substance, set forth these facts: 1st. During twenty years preceding the action plaintiff has been superintendent of the Outagamie county asylum for the chronic insane, located in the town of Grand Chute, and manager thereof, and as such had established a good reputation and enjoyed public confidence. 2d. Annually large sums of public money were, during such time, expended under plaintiff’s immediate supervision, including sums for permanent improvements; the latter sums being customarily accounted for and reported under the head of “Permanent improvements,” and the reports printed for information of the public. 3d. Defendants knew that fact and used the term “permanent -improvements” with reference to such account, kept, reported, and published, and the word “management” with reference to plaintiff’s official status, ■and the word “Diana” as a characterizing meaning for him; and the libelous article was so understood by the public.

In view of the foregoing it seems that the word “management,” in the publication, points, quite clearly, to appellant; the language of the article, “war was carried on at the expense of the county,” suggests that plaintiff made war on defendant for personal revenge; corruptly using public funds under his charge to pay the expenses; the words, “money flowed freely into the hands of men selected to use it for our defeat at the polls,” suggest that plaintiff’s war was for personal revenge and took the course of his using public funds, corruptly, by placing the same in the hands of his agents to defeat the writer in a political contest for membership of the county board, and the words, “We always believed that this money came from Appleton,” that it came from the depository of public funds, which was, by common knowledge, located in Appleton, and that the corrupt conduct was hidden from the people and, perhaps, the county board or those not in sympathy with plaintiff, by entries in his accounts fictitiously swelling the expenditures recorded under the head of “Permanent improvements.”

The publication seems, not only to be capable, in general, of being understood as suggested, but probably was by readers in Outagamie county.

The inverse method, so to speak, of construction applied by respondents’ counsel in testing the complaint, is best illustrated by their humorous analysis of this concluding language of the article: “The great Diana of Outagamie county was in danger. Now if you want to realize the full meaning of the situation, then and today, read the nineteenth chapter of Acts in the New Testament. It tells the whole story.” We do not fail to appreciate counsel’s humor, but, it is not persuasive on the subject under discussion. The quoted language, certainly, was not intended to give an innocent or compliment■ary cast to wbat bad preceded. On tbe contrary, it seems to bare been used to emphasize tbe context by suggesting tbe Epbesian false conception of Diana beside tbe reality as typical of tbe real status of plaintiff, and that be and bis followers were alarmed and resentful because of tbe writer’s expose of bis false character, as were tbe Ephesians by Paul’s uncloaking of their “band-made god” Diana, and destructive exposure of false pretense. “Tbe great Diana” is not uncommonly used to express contempt for superficial “magnificence.” As applied here it gives tbe idea that, instead of plaintiff being wbat be pretended to be, — likened in bis assumed official “magnificence” of'character to tbe fraudulent greatness of Diana in Epbesian contemplation, — tbe acme of purity; “cold and severe in her chastity as tbe silvery light of tbe moon scattered over tbe mountain tops and forest glades; illuminating as tbe free light of heaven; all powerful to protect on earth against tbe dangers of tbe chase and, in subterranean regions, efficient to guard those condemned to tarry there against tbe innumerable ghosts,” — he was a hypocrite and that tbe public was suffering from a delusion as it did at Ephesus; that be bad conceived himself to be in danger of Mr. Tubbs making tbe reality known as was tbe selfish master silversmith, Demetrius, from the teachings of Paul.

“It tells tbe whole story.” Wbat is the whole story of tbe Holy Word? — Tbe picture of a false conception, a mere myth, an artificial character, falsely personified as pure and great and powerful, played upon credulous people as an actuality to sap their revenues, those who profit by tbe deception, — pecuniarily interested in its not being dispelled by tbe truth, blinded by self-interest and alarmed by a supposed impending stoppage of tbe flow of fruits of their deception into their pockets,- — under stimulus of Demetrius, a chief beneficiary,, while riotously striving to suppress tbe source of enlightenment, being admonished that if they bad a real grievance against .the Apostle, — Paul in tbe Bible story, Mr. Tubbs in tbe modern instance, — to vindicate tbe right by judicial appeal to tbe law of tbe land or other appeal to a lawful assembly, — by simile, that if plaintiff deemed himself aggrieved by tbe writer’s expose of bis false character, be should have proceeded in lawful ways for redress rather than by corruptly arousing tbe people to suppress tbe effort to extinguish his superficial “magnificence” and charging the expense out of the public money, cloaking it under his account for “permanent improvements.”

Perhaps too much time has been spent on the reference to-the history of the Acts of the Apostle and the environing circumstances and conditions. Measuring- the publication. from its suggestion to look for “the whole story,” in harmony-with the general trend of its language, it is capable of being-regarded, as it may well have been by the readers, as a very severe characterization of appellant as a corrupt official and' deceiver, — a man unworthy of public confidence, having areal, as far removed from his pretended, character as to be a proper subject for contempt and ridicule.

We must look at the pleading, assuming that plaintiff intended to state a cause of action for unjustly and libelously holding him up as indicated. Erom that viewpoint, all suggested respecting the publication, it is thought, may be reasonably read out of it. As before said, the characterization of plaintiff as a modern Diana is, of itself, suggestive of false pretense rather than possession of the virtues ascribed by the-Ephesians to their idol. The author chose a very efficient way of telling “the whole story,” suggested in outline in the language preceding the scriptural reference. He lit upon a. most concise, caustic, and sarcastic method. It is capable, under the circumstances, of being understood as a very ingenious and scathing arraignment for reprehensible official misconduct, cloaked under superficial pretense of ■ purity. So, we see no good way of escaping the conclusion that the-complaint states a good cause of action, and that the mastery' of human analysis with which counsel presented the matter here turned the judicial view below out of its proper angle.

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