Smith v. Utley

35 L.R.A. 681, 65 N.W. 744, 92 Wis. 133, 1896 Wisc. LEXIS 231
CourtWisconsin Supreme Court
DecidedJanuary 7, 1896
StatusPublished
Cited by27 cases

This text of 35 L.R.A. 681 (Smith v. Utley) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Utley, 35 L.R.A. 681, 65 N.W. 744, 92 Wis. 133, 1896 Wisc. LEXIS 231 (Wis. 1896).

Opinion

Maeshall, J.

The first question presented on this appeal is whether the demurrer. ore terms to the fourth cause of action in the complaint was properly-sustained. In determining this question, we must look to the .whole article, consider its whole scope and object in the light of existing circumstances properly pleaded, and then put such construction upon the language as would naturally be given to it. Bradley v. Cramer, 59 Wis. 309. In the complaint, 'aftér setting forth that plaintiff was the chief of police of the city of Racine, and that defendant was one of the owners, proprietors, and editors of the Racine Evening Times, it is alleged that he maliciously caused to be published and circulated of and concerning the plaintiff, and with malicious intent to injure him in his office and cause it to be .believed that he was unworthy of trust and confidence in such office, an article as follows:

“ CHOKE THEM OFF.
“ (Intending thereby to refer to this plaintiff.)
“ Blood-SuoKING Police Officers Who Insist ON Sitting ON Juries.
“Salaries as Officers Sufficient.
“They Neglect Their Duties as Policemen and Cheat Some Honorable Citizen Out of a $1.20 Fee. (Meaning and intending thereby to charge this plaintiff with the dishonorable neglect of duty therein stated, or of being the cause of such criminal misconduct.)
“ Speaking about hogs, they can be found on the Racine police force (meaning the police force of which this plaintiff was a member). The great American hog is not in with some of them. Now, this has no reference to Georgie, the chief of police (meaning plaintiff). He (meaning plaintiff) [135]*135is beneath our notice until after the coming spring 'appoint-' r ments (meaning and intending thereby to 'refer, to this, plaintiff as less entitled to notice and moré insignificant than any other members of such forcé, not deserving as much recognition as a hog). Should he- (meaning said plaintiff) be retained as the great*I' am ’ for another year, he (meaning said plaintiff) might probably receive a little'more notoriety.”

It was obviously proper for plaintiff, by innuendoes, to 'define the application of the article to the facts set forth in the pleadings; not to extend the meaning of the words, but to show their meaning, how they came to have the defamatory meaning which plaintiff claims for them, and how they applied to plaintiff. Such is the legitimate office of the innuendo. Cramer v. Noonan, 4 Wis. 231; Bradley v. Cramer, 59 Wis. 309; Weil v. Schmidt, 28 Wis. 137; Fleischmann v. Bennett, 87 N. Y. 231; More v. Bennett, 48 N. Y. 475. We are unable to see how the well-established rules of pleading in such cases were seriously violated, if at- all. The fair meaning of the words of the article, viewed in the plain, popular sense in which the same would be naturally understood in view of the matters properly pleaded, is that some ■of the police force, at least, were nothing more than bloodsucking police officers, who insisted on getting all the money they could, regardless .of their duties as such officers, by spending their time serving on juries, and that they deserved to be discharged; that they were in the habit of neglecting their official duties for the purpose of earning additional ■compensation by serving on juries; that they w;ere hogs, not satisfied with the compensation of their official positions, but seeking to gain additional compensation, to the neglect of their official duties; and that, though plaintiff was not included in the particular arraignment, he was more insignificant and less fit for his official position than those that were.

[136]*136Such language,'under tbe circumstances, necessarily tended to prejudice and degrade plaintiff in bis office as chief of police of the city of Racine; to cause it to be believed that he was not worthy to hold such, position, by reason of habitual neglect of duty, — hence actionable. Singer v. Bender, 64 Wis. 169; Bradley v. Cramer, 59 Wis. 309; Massuere v. Dickens, 70 Wis. 83; Lansing v. Carpenter, 9 Wis. 540; Wilson v. Noonan, 23 Wis. 105. It follows from the foregoing that the demurrer was improperly sustained.

The second question presented is, Does the evidence sufficiently connect the defendant Utley with the publication to render him liable in damages, or to make it the duty of the court to submit the question to the jury ? The owner of the paper was a corporation. Defendant TJtley was its president and active manager. He was the principal editor. To be sure, he testified that he did not authorize or know of the publication. He said: “ I do most of the editorial work. I do everything. I am the political editor; the principal editor. I believe my name appears on the paper as editor.” There is other evidence tending to show that, in addition to being the chief executive officer of the corporation, he was the managing editor of the paper and actively engaged in his duties at the time the libelous article was published. If such are the facts, he does not stand in the position of a person who is sought to be charged merely because of being a stockholder or officer of the corporation, . or come within the cases where it is held that mere proof of ownership of stock or official position is not sufficient to show active agency in the production and publication of the libel, so as to render such owner or officer individually responsible, as in Mecabe v. Jones, 10 Daly, 222; Belo v. Fuller, 84 Tex. 450; Simonsen v. Herald Co. 61 Wis. 626; but comes within the exception mentioned in Belo v. Fuller, supra, as follows: That persons are stockholders and officers of the publishing corporation will not make them re[137]*137sponsible for libelous publications appearing in tbe paper, unless it is shown that they in some way aided and assisted and advised its publication or circulation, or unless their duties as officers of the concern were of such character as charges them with the performance of functions concerning the publication amd circulation of the paper, such duties being of such nature that the 1cm would imply that such officer Irnew or should have Tcnown of the publication of the libelous mat-tery

It is laid down by all the text writers that the proprietor, publisher, editor, author, and printer are severally and jointly liable. 13 Am. & Eng. Ency. of Law,' 372; Eraser, Libel, 7-9, and notes; Odgers, Libel & S. (Bigelow’s ed.), *453; Newell, Defamation, S. & L. 239; Townshend, Slander & L. § 115, note 1. This liability attaches to the editor upon the theory that the matter is constructively under his supervision, and neither the editor nor proprietor is allowed to plead in defense that he was ignorant of the publication. Merrill, Newspaper Libel, 53. While evidence that the defendant did not actually or constructively participate in the publication may be introduced, neither the • editor, publisher, nor proprietor can defend on the ground merely that he did not know about the libel until after it was published. Merrill, Newspaper Libel, 249. Publisher and managing editor are treated alike by the standard text writers. This appears to be so elementary that the question has rarely, in recent years, been presented to the courts for consideration. In Watts v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maguire v. Journal Sentinel, Inc.
2000 WI App 4 (Court of Appeals of Wisconsin, 1999)
Denny v. Mertz
318 N.W.2d 141 (Wisconsin Supreme Court, 1982)
Maynard v. Port Publications, Inc.
297 N.W.2d 500 (Wisconsin Supreme Court, 1980)
Fairbanks Publishing Company v. Pitka
376 P.2d 190 (Alaska Supreme Court, 1962)
Davis v. Kuiper
110 N.W.2d 735 (Michigan Supreme Court, 1961)
Shumate v. Johnson Publishing Co.
293 P.2d 531 (California Court of Appeal, 1956)
Faulkner v. Martin
45 A.2d 596 (Supreme Court of New Jersey, 1946)
O'Connell v. Union Drilling & Petroleum Co.
8 P.2d 867 (California Court of Appeal, 1932)
Culbreath v. Guiterman, Rosenfield & Co.
115 So. 303 (Supreme Court of Alabama, 1927)
Finnish Temperance Society Sovittaja v. Finnish Socialistic Publishing Co.
130 N.E. 845 (Massachusetts Supreme Judicial Court, 1921)
World Pub. Co. v. Minahan
1918 OK 309 (Supreme Court of Oklahoma, 1918)
Wahlheimer v. . Hardenbergh
111 N.E. 826 (New York Court of Appeals, 1916)
Gagen v. Dawley
155 N.W. 930 (Wisconsin Supreme Court, 1916)
Leuch v. Berger
155 N.W. 148 (Wisconsin Supreme Court, 1915)
Hanson v. Feuling
152 N.W. 287 (Wisconsin Supreme Court, 1915)
Robinson v. Moark-Nemo Consolidated Mining Co.
163 S.W. 885 (Missouri Court of Appeals, 1914)
Ingalls v. Morrissey
143 N.W. 681 (Wisconsin Supreme Court, 1913)
Ott v. Murphy
141 N.W. 463 (Supreme Court of Iowa, 1913)
Jansen v. Minneapolis & St. Louis Railway Co.
128 N.W. 826 (Supreme Court of Minnesota, 1910)
Folwell v. Miller
145 F. 495 (Second Circuit, 1906)

Cite This Page — Counsel Stack

Bluebook (online)
35 L.R.A. 681, 65 N.W. 744, 92 Wis. 133, 1896 Wisc. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-utley-wis-1896.