Street v. Johnson

14 L.R.A. 203, 50 N.W. 395, 80 Wis. 455, 1891 Wisc. LEXIS 229

• Court: Wisconsin Supreme Court
• Decided: November 17, 1891
• Status: Published

Opinion

Cassoday, J.

Within the rules of law frequently announced by this court we must hold that the article in question was libelous per se. Bradley v. Cramer, 59 Wis. 309, and cases there cited; Gauvreau v. Superior Pub. Co. 62 Wis. 409; Moley v. Barager, 77 Wis. 43. The principles upon which such rules are based, and the reasons for the. same, need not be here repeated. The question presented is one of pleading. Upon this demurrer the allegations of the complaint must be taken as true. 62 Wis. 401. This being so, we must assume for the purpose of this appeal that the article was published of and concerning the plaintiff ; that it was false; and that the defendant wilfully and -intentionally sold and delivered the paper containing the article as therein alleged.

The learned counsel for the defendant contends with much ingenuity that the defendant can only be held liable in case he so sold and delivered the paper knowing that it contained the article in question; and hence that the complaint is defective in not alleging that he knew the paper contained such article at tbe time of making such sale and delivery. The authorities are to the effect that the mere seller of newspapers is not liable for selling and delivering a newspaper containing a libel upon the plaintiff if he can prove upon the trial to the satisfaction of the jury that he did not know that the paper contained a libel, that his ignorance was not due to any negligence on his part, and that he did not know, and had no ground for supposing, that the paper was likely to contain libelous matter. Emmens v. Pottle, 16 Q. B. Div. 354; Peg. v. Judd, 37 Weekly Rep. 143; Chubb v. Flannagan, 6 Car. & P. 431; Smith v. Ashley, 11 Met. 367. But it seems to be equally well settled that such sale and delivery of a newspaper containing a libel is prima, facie the publication of such libel, and hence makes such vendor prima facie liable therefor. Thus, in Emmens v. Pottle, supra, Lord Esher, M. R., speaking for the court, said: “I agree that the defendants are prima facie liable. ■ They have handed to other people a newspaper in which there is a libel on the plaintiff. I am inclined to think that this called upon the defendants to show some circumstances which absolved them from liability, not by way of privilege, but facts which show that they did not publish the libel.” To the same effect is King v. Amphlit, 4 Barn. & C. 35. It is stated as elementary law that “ every sale and delivery of a written or printed copy of a libel is a fresh publication; and every person who sells or gives away a written or printed copy of a libel may be made a defendant, unless, indeed, he can satisfy the jury that he was ignorant of the contents. The onus of proving this lies on the defendant.” Odger, Sland. & L. 160.

Since, under the authorities cited, proof of sale and delivery of the paper containing the article in question would he prima facie evidence of the wilful and malicious publication of the libel, the allegation to the effect that the defendant wilfully and, intentionally sold and delivered the paper containing the article would be an allegation of the only fact tbe plaintiff would be required to prove in order to make out a prima, faeie case. This being so, such allegation would seem to be sufficient, without going further and alleging that the defendant knew that the paper contained the libel; otherwise the plaintiff would be required to allege what he would not be required to prove. Besides, the question whether the defendant knew that the paper contained the article was a fact within his own knowledge, and hence his want of such knowledge is peculiarly a matter of defense.

See note to this case in 14 L. B. A. SOS. — Eep.

By the Court.— The order of the circuit court is affirmed.