Servatius v. Pichel

By ON, J. Several objections, founded upon certain alleged legal propositions, are taken to the complaint, either of which being well taken in fact and law, the complaint fails to state a cause of action. These are : 1. That the alleged slanderous words are privileged, and 'for the speaking thereof no action can be maintained. 2. That such words are not defamatory in their nature, and it is claimed that, in a legal sense, no damages can result from the speaking of words which are not defamatory. 3. That the losses complained of were not the natural and proximate result of the words spoken. 4. That all of the damages complained of have accrued since the action was commenced. [297] 5. That the complaint only states what is claimed to be the legal effect of the rules, canons and ordinances of the church, whereas it should have set out such rules, canons or ordinances. These positions will be considered briefly in the order herein stated. I. It is doubtless correctly observed by Mr. Townshend in his Treatise on the Law of Slander and Libel, that “ the proceedings of the church to enforce its discipline are quasi judicial, and therefore those who complain, or give testimony, or act, or vote, or pronounce the result, orally or in writing, acting in good faith, and within the scope of the authority conferred by this jurisdiction, and not falsely or colorably making such proceedings a pretense for covering an intended scandal, are protected by law.” § 233. This rule is the logical result of the principle laid down in the same section, that, “ by becoming a member of a church, the individual tacitly consents to submit to the church discipline,” and so long as discipline is administered in good faith, and without malice, th^ church member who is the object of it has no ground for complaint. If, therefore, the words set out in the complaint were spoken by the defendant in the proper discharge of his clerical and pastoral duty, and without malice, no action for the speaking thereof can be maintained. In such case the publication would be privileged. This publication is not absolutely privileged, but it belongs to the class known in the law as “ conditionally privileged.” That is to say, it is privileged only on the condition tha.t it was made without malice. The nature of this class of publications is stated by the chief justice in Noonan v. Orton, 32 Wis., 106. It is only necessary to refer to that case, and the authorities cited in the opinion, for a full exposition of the law on the subject. The complaint in this action avers that the words in question were spoken and published by the defendant without authority, wantonly and maliciously, and with intent to injure and scandalize the plaintiff, and that they were false. Thus the [298] complaint expressly avers the existence of facts which are entirely incompatible with a conditionally privileged publication. If the above averments are true, the words complained of are not privileged ; and, for the purposes of this appeal, they must be taken as true. II. The words in question do not impute to the plaintiff a criminal-offense involving moral turpitude; yet they are defamatory in their character. It is to some extent derogatory to a person, and affects his reputation unfavorably in the estimation of very many people, to be expelled or excommunicated from a ohristian church for a violation of its rules and discipline. This is peculiarly true in the present case, since the learned counsel for the defendant have shown to our entire satisfaction, that the offense which it is charged was committed by the plaintiff, and for which the sentence of excommunication was pronounced against him by the defendant, is so heinous that he who commits it is ipso facto excommunicated from the church. Surely jt must be defamatory to impute to a person so grave an offense. Hence the complaint states a cause of action in this respect, even though it be conceded that an action cannot be maintained unless the words are defamatory in a sense which involves something of moral delinquency. But whether the term “ defamatory,” as employed in the rule which counsel for defendant seek to apply in this case,_ means anything more than that the alleged publication must be disparaging or injurious to the plaintiff, to be actionable if special damages result therefrom, is a question which we leave undetermined. See Townshend on Slander and Libel, § 197, and cases cited. III. We think that the complaint shows that the damages and losses complained of were the natural and proximate results of the speaking of the alleged slanderous words by the defendant. Facts are therein stated which show that the loss of customers and business would almost inevitably result from the sentence of excommunication, and did result therefrom. [299] ^Furthermore, it is charged in tbe complaint that the defendant intended, by the publication, to produce precisely these results. It would be difficult-to hold that the damages which were foreseen and intended by the defendant, are not the natural and proximate results of his act. In a note to the case of Gilman v. Railroad Co., 12 Law Reg., 559, and again in an article published in 13 id., 14, Judge Bedfield discusses, with great learning and discrimination, the proper application and extent of the maxim, “ In jure non remota causa sed próxima spectatur,''1 citing numerous authorities;-and he reaches the conclusion, “ that those consequences which the law treats as too remote for consideration in estimating damages, must be such as the defendant had no just ground to expect would flow from his act;. in other words, such as were, upon the -basis of his knowledge, rather accidental than natural or ordinary.” (Law Beg. for Sept. 1873, p. 19.) Within this rule, the damages complained of in this action are clearly the proximate result of the alleged slanderous publication; and the principle of the rule was substantially approved and applied by this court in Kellogg v. The C. & N. W. R’y Co., 26 Wis., 223. IY. That the complaint alleges that the plaintiff had suffered special damages by reason of the publication of the slanderous words, before this action was .commenced, cannot be doubted. This is sufficient, and it would be premature to determine here whether he may or may not recover prospective damages also, that is, damages accruing after the commencement of the action. Y. We are unable to say that the complaint does not set out the rule, canon or ordinance of the church relative to the treatment of excommunicated persons, according to the tenor and effect thereof. We think it sufficient to state the substance of the rule- or canon in question, ■ and that it is not incumbent on the plaintiff to-copy the.same into his com [300] plaint. If it be not stated with sufficient certainty, a motion to make more definite and certain is the remedy. Our conclusion is, that the complaint states facts sufficient to constitute a cause of action. By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.