Ingalls v. Morrissey

143 N.W. 681, 154 Wis. 632, 1913 Wisc. LEXIS 277

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

Opinion

KeewiN, J.

1. This action was brought against Maurice Morrissey and Edward Morrissey, and upon the trial the court granted a nonsuit as to Edward Morrissey. It is claimed on the part of the plaintiff that the nonsuit was improperly granted because Edward Morrissey bad an interest in the Delavan Republican business and was therefore chargeable with the article published. After a careful examination of the evidence we are convinced that the nonsuit was properly granted on the ground that there is no sufficient proof connecting Edward Morrissey with the publication of the article. Nor does the evidence show that be bad any interest in the Delavan Republican business. the order, therefore, granting the nonsuit as to Edward Morrissey must be affirmed.

2. As appears from the statement of facts, the defendant set up special matter setting forth charges of misconduct upon the part of the plaintiff in addition to those stated in the publication, and offered evidence thereof as tending to prove the charge set forth in the publication to the effect that the plaintiff was a disgrace to bis profession as a lawyer and smoofb, tricky, and dishonest. On the trial the defendant was confined to the specific matters of misconduct referred to in the article, the court holding that there was no general charge that the plaintiff was a disgrace to his profession as a lawyer, smooth, tricky, and dishonest, except in the particulars mentioned in the article. We think this ruling was error which must work a reversal of the judgment below.

The article starts out: “Wallace Ingalls, buccaneer of the First district political sea, disgrace to his profession as lawyer, and proved guilty of juggling his accounts as administrator of estates,” . . .'“Wallace Ingalls, admittedly smooth and tricky and dishonest — would represent this superb district in the halls of Congress and take the seat of the man upon whom there has never rested a stain — Henry Allen Cooper.”

Farther on in the article under the head of “Becord-of the Courts” is this: “A part of Ingalls's record — that part dealing with his efforts to fatten upon the estates of the dead and rob lawful heirs — is a record of the courts of this county — or should be.” Then follows specific matter reciting alleged misconduct of Ingalls in the management of estates and also in reference to his campaign against Mr. Cooper. It is quite clear from a reading of the whole article set out in the statement of facts that a general charge was made and intended to be made and would be so understood by readers of the article, and that the special matters of misconduct were set up as a part of the record of the plaintiff; therefore under the authorities in this state and elsewhere the defendant had a right to justify by setting up and proving other specific acts of misconduct tending to prove the general charge, namely, that the plaintiff was a disgrace to his profession as a lawyer and smooth, tricky, and dishonest.

The defendant set up the whole article in the answer and alleged that the portions omitted from the complaint were necessary to be read in connection with the alleged portions in order to arrive at the true meaning of the matters charged, and that the article charged and intended to charge and- was so understood by readers thereof to charge the plaintiff with being a disgrace to his profession as a lawyer, smooth, tricky, and dishonest, and that the article detailed only a part of the facts showing the plaintiff to be such.

The answer further alleges that the charge that plaintiff was a disgrace to his profession as a lawyer, smooth, tricky, and dishonest was true, and alleged in justification thereof specific acts of misconduct in addition to those set forth in the article, the first being an attempt to suborn perjury at Ba-cine in 1899 in connection with a certain slander action in which the plaintiff was attorney; the second, that in 1898 plaintiff acted as attorney in a divorce action in the circuit court for Cook county, Illinois, in which he unlawfully and corruptly received $250 which belonged to his client and which he was not entitled to, and converted the same. The third instance of misconduct set forth that the plaintiff, being the attorney of one Scott in a case in the federal court at Milwaukee, obtained from his client by false and fraudulent representations a large sum of money which he was not entitled to and converted it to his own use. The fourth instance of misconduct alleged concerned plaintiff’s connection with a divorce suit in Kacine county in 1908 in which plaintiff fraudulently and unlawfully obtained money belonging to his client and converted the same. All of these alleged acts of misconduct were pleaded in detail in the answer in justification of the charge that the plaintiff was a disgrace to his profession as a lawyer, smooth, tricky, and dishonest. The defendant also pleaded the truth of the charges connected with the Whitely estate and justified thereunder. The specific instances of misconduct and other facts were also pleaded in mitigation of damages. Upon the trial the court below struck out all specific instances of misconduct pleaded and ruled out all evidence offered in support thereof.

It is clear that the article taken as a whole is capable of the meaning ascribed to it by the answer, namely, a general charge tbat the plaintiff was a disgrace to bis profession as a lawyer, smooth, tricky, and dishonest. Arnold v. Ingram, 151 Wis. 438, 138 N. W. 111; Morehead v. Jones, 2 B. Mon. 210, 36 Am. Dec. 600; Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000. And the meaning which must be ascribed to an article is the meaning attributed to it by those who read or heard it. Arnold v. Ingram, supra; Pfister v. Milwaukee Free Press Co. 139 Wis. 627, 121 N. W. 938; Scofield v. Milwaukee Free Press Co. 126 Wis. 81, 105 N. W. 227.

The charge being general, the instances of specific misconduct were properly pleaded in justification and the evidence should have been admitted thereunder tending to establish the truth of the charge. Bilgrien v. Ulrich, 150 Wis. 532, 137 N. W. 759; Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000; Kimball v. Fernandez, 41 Wis. 329; Talmadge v. Baker, 22 Wis. 625.

In Kimball v. Fernandez, supra, there was a charge that the plaintiff, a member of Congress, was “a man who makes appointments a source of personal revenue, and that he received $200 from a person for influence in procuring the former’s appointment as postmaster.” Other instances of similar misconduct were held improperly stricken from the answer.

In the Bilgrien Case plaintiff was' charged with being a swindler and a cheat, and defendant set forth certain specific acts of misconduct. The answer pleaded the truth of the acts mentioned and other acts of like corruption, and it was held that the specific acts constituted a proper defense.

Evidence was also competent tending to prove the specific acts of misconduct in mitigation of damages. Kimball v. Fernandez, supra; Adamson v. Raymer, supra; Kennedy v. Holborn, 16 Wis. 457; Eviston v. Cramer, 54 Wis. 220, 11 N. W. 556.

It is clear from the foregoing cases and many others which might be cited that the court below committed reversible error in striking out portions of the answer setting up specific acts of misconduct and excluding evidence thereunder.

3. It is assigned as error that the question respecting destruction of records in the Whitely estate should not have been submitted to the jury because not libelous, and that the words were not capable of the meaning ascribed to them by the innuendo. It is claimed that the words merely charged disappearance from the court files of the records in 1909 in a manner unknown to the county judge and that they were returned in 1912, and how, when, or by whom was not known to the court or its employees. It is said that the words standing alone are not actionable per se. But as we have seen, these words must be read in the light of the whole article, and when so read we think they are capable of the meaning ascribed to them in the innuendo. Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724; Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000; Smith v. Utley, 92 Wis. 133, 65 N. W. 744; Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268; Eviston v. Cramer, 47 Wis. 659, 3 N. W. 392; Wilson v. Noonan, 23 Wis. 105; Jones, V. & Co. v. Townsend’s Adm’x, 21 Fla. 431.

The article charges that “interested folk proceeded to the county court to look over the record and freshen their memory concerning the fraud practiced by Ingalls upon the estate of Hiram E. Whitely,” and found that every scrap of paper and everything in the way of evidence had mysteriously disappeared, and that the documents had never been found and probably would never be. This language in connection with the balance of the article, which charges Ingalls with divers acts of misconduct and efforts to “fatten upon the estates of the dead and rob lawful heirs” as shown by the record of the courts of the county, or should be, together with other portions of the record charging dishonesty in court matters, we think make the charge capable of the meaning ascribed to it, hence there was no error in submitting this portion of the article to the jury. '

4. Error is assigned because the court refused to leave to the jury the questions whether the statements as to the Martin estate and the case of Creamer v. Ingalls and plaintiff’s connection therewith were privileged. Appellant relies upon sec. 4256a, Stats., which provides:

“The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt any such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any headline or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled or spoken, concerning him in the course of such proceeding by some other person. ...”

It is quite obvious that the matter of the Martin estate and the case of Creamer v. Ingalls were not privileged, and the court was justified in so holding as matter .of law. The report of these matters was not a true and fair report of a judicial proceeding within the meaning of the statute, but contained much matter in connection with the report which if false would be libelous. The part of the article relating to the Martin estate and the case of Creamer v. Ingalls is set out in the statement of facts and speaks for itself.

It is a mistake to say-that because one is a candidate for office he may be wantonly libeled under the pretense of privilege. Of course his fitness for the office may be publicly discussed, and any fair comment or criticism is permissible within the bounds of truth. Arnold v. Ingram, 151 Wis. 438, 138 N. W. 111; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671. In the matter of the Martin, estate the article is not confined to a true and fair report of judicial proceedings, but contains matter not protected by sec. 4256a, Stats. Pfister v. Sentinel Co. 108 Wis. 572, 84 N. W. 887; Ilsley v. Sentinel Co. 133 Wis. 20, 113 N. W. 425.

We conclude that the statements in the article published as to the Martin estate and the case of Creamer v. Ingalls and the plaintiffs connection therewith were not privileged. Hart v. Sun P. & P. Asso. 79 Hun, 358, 29 N. Y. Supp. 434; Scripps v. Reilly, 38 Mich. 10; Belknap v. Ball, 83 Mich. 583, 47 N. W. 674; Salisbury v. Union & A. Co. 45 Hun, 120.

5. Error is assigned upon the exclusion of evidence offered by the defendant upon questions of malice and punitory damages. The.defendant sought'to prove that the defendant had received information which he believed with reference to the Whitely estate charges before the publication of the article referred to in the complaint. The court held that the defendant could not prove that he had received a report of the facts stated in the article from others or that the facts appeared to his knowledge in other papers before he published them. Express malice was alleged in the complaint and punitory damages were allowed by the jury. The evidence offered tended to disprove malice and that defendant had reasonable grounds to believe and did believe that the charge made by him was true. The evidence was competent and should have been allowed under the allegations of the answer, the facts having been pleaded. Pfister v. Milwaukee Free Press Co. 139 Wis. 627, 121 N. W. 938; Earley v. Winn, 129 Wis. 291, 109 N. W. 633; Eviston v. Cramer, 54 Wis. 220, 11 N. W. 556; Wilson v. Noonan, 35 Wis. 321, 346; Bush v. Prosser, 11 N. Y. 347; Hearst v. New Yorker Staats Zeitung, 71 Misc. 7, 129 N. Y. Supp. 1089; Hatfield v. Lasher, 81 N. Y. 246; Brewer v. Chase, 121 Mich. 526, 80 N. W. 575; Hewitt v. Pioneer-Press Co. 23 Minn. 178.

Other errors are assigned, but since the questions involved therein are not likely to arise upon another trial we shall refrain from discussing them. It follows that the judgment of the court below must be reversed.

By the Court.- — On the defendant Maurice Morrissey’s appeal the judgment of the court below is reversed, and the cause remanded for a new trial. Upon the appeal of the plaintiff from the order granting a nonsuit as to Edward Morrissey the order appealed from is affirmed.