Brown v. Vannaman

The following opinion was filed May 2, 1893: Cassoday, J. The plaintiff and the defendant were rivals in the same business and in the same city. The manifest purpose of the letter of May 13, 1891, was to induce the person to whom it was sent to stop selling milk and cream to the plaintiff and commence selling the same to the defendant. In other words, it was a written slander upon the plaintiff in his trade and business; and as such it tended directly to prejudice the plaintiff therein, and hence was, within the well-established rules of law, libelous per se, though not imputing any crime. Gottbehuet v. Hubachek, 36 Wis. 515; Spiering v. Andræ, 45 Wis. 330; Singer v. Bender, 64 Wis. 169; Muetze v. Tuteur, 77 Wis. 236. It follows as a necessary sequence that the exceptions to the several portions of the charge in harmony with the proposition of law above stated must be overruled. Error is assigned because, in submitting the second question contained in the special verdict, the court charged the jury that “ it is not enough for the defendant to testify or to show to you that he believed that the statements made by him were true. He must have had good reason to believe that the charges made by him we,re true. The mere assertion by him, under oath, that he believed them to be true, without having good cause to believe that they were true, will not exempt him from liability.” The court then submitted it to the jury to determine whether the defendant had good reason to believe the statements contained i:n his letter to be true or not. Counsel contend that if the455 defendant, at the time of sending the letter, believed such statements to be true, then the communication was privileged, and he assigns error because the court refused to give the following instruction: “ I instruct you, as a matter of law, that if this letter of May 13, 1891, was written by the defendant, believing it to be true, in good faith, without malice, then it was a privileged communication and this action cannot be maintained. It is the end of the case if you should find that it is a privileged communication under the rule that I have given you:” The instruction so requested and refused seems to have been copied almost literally from one that was given and held not to be error, in Rude v. Nass, 79 Wis. 326. The reason for such ruling in that case was that the communication there involved was conditionally privileged. This is apparent from what is there said to the effect that counsel on both sides in that case agreed to the rule of law as stated by Foloek, O. J., in Hamilton v. Eno, 81 N. Y. 122, “ that it is for the court to determine whether the subject-matter to which the alleged libel relates, the interest in it of the author of it, or his relations to it, are such as to furnish an excuse; but. that the question of good faith, belief in the truth of the statement, and the existence of actual malice, remain for the jury.” It was there further said, in behalf of this court, that “ under this rule the question whether the alleged libel was conditionally privileged was a mixed question of law and fact, to be submitted to the jury under the charge of the court. That is what was done in this case.” 79 Wis. 327. In the leading case of Wright v. Woodgate, 2 Cromp., M. & R. 577, Parke, B., said: “ The proper meaning of a privileged communication is only this: that the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact,— that- the defendant was [456] actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made.” This language was expressly sanctioned by Mr. Justice Daniel in White v. Nicholls, 3 How. 287; and also in a recent case in the House of Lords,— Jenoure v. Delmege, (1891) App. Cas. 78. In the case at bar the trial court held as a matter of law that the letter mentioned was not a privileged communication, and we are constrained to concur in such ruling. It does not appear that the defendant had any legitimate interest in the business conducted by the plaintiff, nor in the purchases made by him from the person to whom the letter was addressed, nor was he under any obligation or duty to make the communication, nor was the communication made in the interest of the public or good morals, but, on the contrary, the defendant wrote and published the letter as a mere volunteer, acting from motives of personal gain to be secured through the injury of a rival.in business. It certainly does not answer the description of either the second, third, or fourth kinds of privileged communications mentioned by Mr. Justice Daniel, and held by the supreme court of the United States, in the case cited. "We think it is equally clear that it does not fall within the first kind there defined as follows: “Whenever the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests.” We find no error in the charge given, nor in the instruction refused. Of course, a mere belief in the absence of any good reason to so believe, as mentioned in the portion of the charge quoted,, would not be .available .as a defense., The only doubt we have, had in this case is whether we should not reverse the judgment by reason of the excessive damages found. Had the trial court, in the exercise of the very large discretion vested in it in such cases, set aside [457] the verdict and granted a new trial unless the plaintiff remitted a portion of such damages, we should have felt more certain that justice had been done between the parties. Corcoran v. Harran, 55 Wis. 125; Baker v. Madison, 62 Wis. 149; Murray v. Buell, 74 Wis. 17. But we cannot say that the damages found are so excessive as to create the belief that the jury were misled either by passion, prejudice, or ignorance, and that the court abused its discretion in allowing the verdict to stand; and hence, ■within the adjudications last cited, we do not feel authorized to reverse the judgment upon that ground. “ Besides, the .trial court has a much broader discretion in such matters than this court.” Heddles v. C. & N. W. R. Co. 74 Wis. 259. Other minor exceptions, mentioned in the brief of counsel, must be regarded as overruled. By the Court. — -The judgment of the superior court of Milwaukee county is affirmed. A motion for a rehearing was denied June 21, 1893.