Wilson v. Noonan

27 Wis. 598

• Court: Wisconsin Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

Lyon, J.

This is an action to recover damages for an alleged libel. The contents of the publication complained of are stated sufficiently in the opinion of Mr. Justice Cole, in 23 Wis. 105, when the case was in this court on an appeal from an order overruling a demurrer to the complaint. It was there held that such publication is prima facie libelous, in that it charges the plaintiff with having acted corruptly in his capacity as a state senator, and that it is not merely a libel upon him as'a private individual, but is a. libel upon him in his public and official capacity as such senator.

The answer of the defendant contains a general denial, and also a statement of certain alleged facts, which, it is claimed, are mitigating circumstances. The circuit judge held, however, that the answer contained no legal defense except the general denial.

The action was tried, and the plaintiff had a verdict and judgment; from which judgment an appeal has been taken to this court by the defendant.

I. The evidence on the trial tended to show that the defendant sent an article written by him in English, to Mr. Shoeffier, the proprietor and publisher of the “ Banner and Volksfreund,” a newspaper then published in Milwaukee, in the German language, to be translated into German and published in that paper. Mr. Shoeffier had the article translated by a person whom he kept in his employ for such purposes, and published the translation thereof in his paper ; which is the publication complained of. The published article is set out in the complaint in German, and also a translation thereof in English; and the evidence shows that there are variances, and perhaps material variances, between such English translation contained in the complaint and the original article written by the defendant. The testimony also tends to show that the libelous article so published in the German language is not a correct translation of the original;

It is quite apparent that if. such variance is material ■ — if the scope and character of the article were substantially changed by the translation — the defendant ought not to be held liable for its publication, unless he is responsible for such translation, or in some other way for the publication of the article in its changed form.

The judge charged the jury, in substance, that if the defendant wrote an ^article for publication in the “ Banner and Vollcsfreund” and gave it to the publisher of that paper, to be by him translated into German and so published, the defendant thereby made such publisher his agent in that behalf, and is responsible for the translation and publication thereof, although such translation might be materially inaccurate. We find no error in this instruction. We see no valid reason why the maxim respondeat superior should not be applied here. That an agent may be employed to translate written productions from one language to another, and to publish the same as translated, seems too clear for argument; and if this may be done, on what theory can we say that the legal incidents which attach to the relation of principal and agent in other cases, do not attach in this case ? The doctrine that the principal is liable to third persons for all damages sustained by them by the negligence or unskillfulness of his agent in the course of his employment, is elementary and of universal application.

Judge Stoey, in his Commentaries on the Law of Agency, states the rule to be, that the principal is liable in a civil action “ for the frauds, deceits, con-cealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, or omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them.” Sec. 452. And he also asserts that such liability “ extends not only to the injuries and wrongs of the agent who is immediately employed by the plaintiff in the particular business, but also to the injuries and wrongs done by others, who are employed by that agent under him, or with whom he contracts for the performance of the business; for the liability reaches through all the stages of the service.” Section 454,

We think that the testimony tended to prove a state of facts which, if proved, renders the defendant liable for the publication complained of, although the same may be materially different from the original article prepared by him.

This case seems to be analogous to that of the proprietor of a newspaper, and such proprietor has been held responsible for whatever appears in the columns of his paper, although the publication was made in his absence and without his knowledge, by an agent to whom he had given express instructions to publish nothing exceptionable, personal or abusive, which might be brought in by the author of the libel. Townshend on Slander and Libel, sections 122, 123 and 124, and cases cited in the notes thereto.

If the ruling of the court in the case of Harding v. Greening, 8 Taunton 41 (4 Eng. C. L. 13), cited by counsel for the defendant to sustain the opposite doctrine, is good law, then we think that it is not in point.

II. All of the instructions asked by Mr. Walker which were refused by the court, and the. third, fourth, fifth, sixth and thirteenth instructions asked for by Mr. Murphey, are predicated on the hypothesis that if there was any material variance between the original article and the published article as correctly re-translated into English, the. plaintiff could not recover. That hypothesis being erroneous, the instructions founded upon it were properly refused.

III. By the seventh, eighth and ninth instructions asked for by Mr. Murphey, it was proposed to submit to the jury the question as to whether the words used in the publication imputed a charge against the plaintiff of bribery or corrupt conduct in office. It has been stated already that when the case was here before, this court held that the words, prima facie, did impute such corrupt conduct to him, and there is no evidence tending to show the contrary. The instructions were therefore properly refused.

IY. The twelfth of Mr. Murphey’s instructions is unsupported by the testimony. The court practically excluded all testimony under the last portion of the answer, relative to .the mining stock. I think this proposed testimony was correctly excluded. It was not competent for the defendant to show particular acts of dishonesty and corruption, entirely disconnected with the offenses charged in the alleged libel. I think this is the settled law of this country.

Y. I will here notice another objection, which was made by the defendant at the commencement of the trial, which perhaps should have been considered before. Such objection was, that there is no sufficient averment in the complaint that the alleged libel was understood by any person whatever; The averments of the complaint on this subject are, that it was published in the “Banner and Volksfreund,” in the German language; that a large proportion of the people of this state are Germans, who still speak and read the German language, and among whom such paper has a large circulation; and that this is particularly true in respect to the constituents of the plaintiff in his senatorial district.

We are to construe these allegations of the complaint liberally with a view to substantial justice between the parties. R. S. eh. 125, sec. 21. And by that rule of construction, I find no difficulty in determining that the complaint sufficiently charges a publication of the article complained of, to persons who understood its contents.

YI. The eleventh, of Mr. Murphey’s instructions which the court refused to give, is as follows: “ Malice is the essence and gist of an action of libel, and you should consider any and all facts in the case, if any, showing that said publication was made with good motives and without malice, in mitigation of damages.” It is doubtless correct to say that the absence of what some of the, books term express malice in the mind of the defendant may go in mitigation of damages. It is also true that it conclusively appears in this action by the pleadings, that if the defendant published this libel at all, he did so maliciously; for the law infers malice from the doing of a wrongful act without lawful justification or excuse. This is sometimes denominated malice in low, or implied malice. The instruction seems to assume that there might he an entire absence of malice in the act of publication, which is impossible under the pleadings as they stand. The fault in the instruction seems to be in not making the distinction between the malice which the law implies from the wrongful and unlawful publication, and that which has its foundation in a depraved, wicked or malignant intention to injure and defame. We can hardly say, then, that it was error to refuse the instruction. But had it been framed so as to recognize this distinction, it doubtless- should have been given.

VII. Many exceptions were taken during the trial to the rulings of the court upon objections to the admission of testimony. Some of these, perhaps the most of them, are disposed of by the decisions of the various points already discussed. There is but one of these rulings that we deem necessary to refer to particularly.

The following question was propounded to Joseph Philips, a witness called by the defendant, and who had testified that he was a member of the legislature with the plaintiff at its session in 1866, that being the session referred to in the alleged libelous publication : “ What was the official character and reputation of the plaintiff, as a representative, at the time he was in the legislature ?” The question’ was objected to by the plaintiff, and the court sustained the objection, and held that any inquiry into the plaintiff’s official reputation was improper. There is room for the argument that the question was too broad, and that if testimony of this character is admissible at all, the inquiry should have been restricted to his reputation for official integrity and honesty. But this.was evidently the scope and meaning of the question. It seems so to have been understood by the counsel for the plaintiff, who did not object thereto because it was too general, but, as I infer, on the ground that no testimony of official reputation was admissible; and the court, as above stated, held expressly that any inquiry on the subject was improper.

We are to consider this subject, therefore, as though the question had been propounded to the witness in the restricted form above suggested.

The cases are numerous which hold that evidence of the plaintiff’s bad character in relation to the particular fault charged, is admissible, and that such evidence is admissible under the general denial. Whatever conflict of authority there may be on the subject, such is the settled law of this state. B-v. I—, 22 Wis. 372.

In this alleged libel the particular fault charged against the plaintiff is, that he had been guilty of corrupt conduct in his official capacity as a senator. It seems to me that the conclusion is irresistible, that it is competent for the defendant to prove, if he can, that the reputation of the plaintiff in that particular was not good. The charge made against him is, that he has been guilty of official corruption; and if the defendant should succeed in proving that his general reputation was that of a corrupt officer, ought not that fact materially to mitigate the damages 1 Were the rule otherwise, the most pure, high-minded and honorable public officer, whose official character might be assailed, would be in no better position than the most corrupt and profligate official similarly situated. It is no answer to this argument to say that the right to attack the personal reputation of the plaintiff in his capacity as a citizen, in respect to the fault or offense charged, is sufficient for the protection of the defendant. • Instances are not wanting of men who, in private life, have sustained and do sustain good reputations, and yet in public official capacities have been dishonest and corrupt. And, on the other hand, men who in private life were reputed to be dishonest and unscrupulous, have discharged public official duties with remarkable fidelity and honesty. Should a person of the former class bring an action against one who had libeled or slandered him by falsely charging him with corrupt conduct in office, if the defendant were con-, fined to proof of the personal reputation of the plaintiff as a citizen, and prohibited from showing his profligacy and corruption as an officer, such plaintiff, as regards damages, would stand equally as well as though he were an honest and incorruptible public officer. This obviously would be a violation of the rule which permits evidence to be given of the plaintiff’s bad reputation in relation to the particular fault, or offense charged in such slander or libel, and might, and probably would, work great injustice to the defendant.

, But it may be said that in an action of a similar kind brought by a person of the latter class, to permit the defendant therein to give evidence of the general bad reputation of such person, without restricting such inquiry to his reputation for official integrity, the same injustice might be done the plaintiff, as, in the former case, would be done the defendant, by not allowing him to investigate such official reputation. Stated in another form, the argument is, that if the defendant may give evidence of the official reputation of the plaintiff in respect to the particular offense charged, where the alleged libel or slander charges particular official misconduct — and this for the reason that a different rule might work an injustice to him, then he ought to be restricted to such evidence, and should not be permitted to attack the general reputation of the plaintiff, or Ms personal reputation as a citizen, because without such restriction injustice might be done the plaintiff. The question, as to whether it is competent in this action for the defendant to give evidence of the general reputation of the plaintiff without such restriction, is not before us on this appeal, except only as it may be incidentally involved in the argument and decision of questions which are presented directly for adjudication. The question here is, not whether evidence of the plaintiff’s reputation shall be, but whether it may be, thus restricted.

But, speaking only for myself, I do not hesitate to say that were I called upon to decide the question upon principle., regardless of the authorities bearing upon it, I should be strongly inclined to hold that in such actions evidence to impeach the reputation of the plaintiff must be restricted to his reputation in respect to the particular fault or offense which the alleged libel or slander imputes to him.

It is said that a person who brings such an action puts his reputation in issue; but it seems to be more accurate to say that he thereby puts it in issue in the particular wherein he claims that it has been assailed.

Human reputation is complex in its nature. Because a man has a single vice or even more than a single vice, it does not necessarily follow from that circumstance that he is totally depraved. I speak of total depravity from the ordinary, and not from a theological standpoint. The man may have vices, and yet his virtues may so predominate over them, that it may truthfully be said that his general reputation is good. He may be an incorrigible liar, and yet strictly honest in all his dealings. He may be a great scoundrel in pecuniary matters, and yet perfectly chaste. And so examples almost without number might be multiplied, where virtues and vices may exist in the same character, the one predominating' in certain respects, and the other in certain other respects.

Where a person’s character for truth and veracity is falsely assailed, and he brings his action against the assailant to recover damages therefor, if his reputation for truth and veracity is good, on what sound principle can it be said that if such plaintiff is unchaste, or dishonest in business matters, or covetous, profane or a sabbath-breaker, the damages to which he would otherwise be entitled shall be reduced perhaps to a sum which is merely nominal ? I will not pursue the subject, but will refer those who may wish to investigate it farther, to a few cases in which this principle has been somewhat discussed. Conroe v. Conroe, 47 Pa. St. 198; Moyer v. Moyer, 49 id. 210; Atwood v. Impson, 20 N. J. Eq. R. 150 (5 Green).

It follows that the circuit court erred in not permitting the defendant to give evidence of the reputation of the plaintiff for official honesty and integrity as a senator; and for that reason the judgment .must be reversed.

VIII. The foregoing views render it unnecessary that we should pass upon the question as to whether the court erred in refusing the defendant’s application for a continuance of the action.

By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.