Adamson v. Raymer

Newman, J. The ultimate question is whether the proof of facts of the character of those set out in those portions of the answers which were stricken out by the order appealed from can properly be received upon the trial for the purpose of diminishing the damages to which the plaintiff would be otherwise entitled by reason of the publication of the libelous articles. If they can properly be received in evidence for that purpose, they are proper to be pleaded; otherwise, they are not proper to be pleaded. If they were proper to be pleaded and proved, it was error to strike them out from the answers; for such facts could not be received in evidence on the trial, if they were not pleaded in the [248] answers. R. S. see. 2678; Reiley v. Timme, 53 Wis. 63. Mitigating circumstances are those which, while not proving the truth of the libelous charge, yet are connected with or bear upon it, and are of such nature as tend in some appreciable degree towards such proof, so as to permit of an inference that the defendant was not actuated by actual malice in making the charge,— such as tend to show that, although mistaken, the defendant Amt believed, on reasonable grounds, the charge to be true. Any such facts are competent to be pleaded and proved in mitigation of damages. Kennedy v. Holborn, 16 Wis. 457; Mattice v. Wilcox, 147 N. Y. 624. Any facts tending to overcome or lessen the presumption of malice, if properly pleaded in mitigation of damages, may be proved. Eviston v. Cramer, 54 Wis. 220. For this purpose particular unrelated instances may be pleaded and proved. Wilson v. Noonan, 27 Wis. 598; Kimball v. Fernandez, 41 Wis. 329. Whether the facts so pleaded and stricken out are of this character must be ascertained and determined by an examination and consideration of the libelous publications as a whole. Such construction is. to be put upon the language as is consistent with the whole Avriting. It should be construed and understood in the sense in which the writer intended it. Each word and accusation is to be considered, and to have its proper Aveight and consequence. The plaintiff is entitled to have the jury consider, in the assessment of his damages, each defamatory charge, as welt as the aggregate defamation. The defendant’s right to mitigate should be equally broad, and apply to each defamatory charge. In their general scope the libelous publications plainly charge the plaintiff, with iteration and detail, with general official dishonesty and corruption. Rut with equal plainness they charge more. They charge him with general unfitness for his office on other grounds than dishonesty. After charging him Avith dishonesty in general and in de [249] tail, it is added: “ Chief of Police Adamson bas in manifold -ways proved Ms absolute unfitness for the office which he fills, or for any other office of a public nature where honor counts for aught.” Other passages are of similar import. This seems to be broader than the charge of official dishonesty only. It is a charge of general unfitness in more respects than had been already stated, “ in manifold ways,”— “where honor counts for aught,” — in other ways than by dishonesty only. There is a sentiment quite prevalent in the community that drunkenness is unfitness for office; that it unfits one for any office; that it is a dishonor. So, too, of drunken and disorderly behavior in public places. It would hardly be questioned that words which impute to one, in his character of an officer, total unfitness for his office and a total want of official honor, per se constitute a libel. They clearly tend directly to diminish public confidence in his official integrity, and thus to injure him in the business of his office, as well as to cause his removal from office. Lansing v. Carpenter, 9 Wis. 541; Spiering v. Andrœ, 45 Wis. 330. The defendants have the right to plead and prove, if they can, any facts which will properly go in mitigation of this libelous charge. The facts which were pleaded and stricken- out seem to be so connected with this charge, and so to bear upon it, as to tend, in some appreciable degree at least, to show that the defendants believed it to be true, and so to permit an inference that they were not actuated by actual malice in its publication. But it is always a matter of difficulty and uncertainty to determine in advance of the trial, and on the pleadings alone, just what matters may be put in evidence, in any particular stage or condition of the trial, to show what causes induced the defendants to the action complained of. The determination of such question must needs be left largely to the discretion of the trial judge, to be exercised at the time when the question arises. The full relation and bearing of [250] particular facts cannot well be foreseen. The division line between such facts as are properly receivable in mitigation of damages, and those which are inadmissible for this purpose, cannot be defined with entire accuracy preliminary to the trial. So, because the defendant will be precluded from giving in evidence those mitigating circumstances which do not appear in his answer, the courts must exercise great caution in striking out matter pleaded in mitigation, and should never do so unless it is clear that, under no possible circumstances, could the matter pleaded have the bearing claimed for it. Bradner v. Faulkner, 93 N. Y. 515; Townshend, Slander & L. (4th ed.), § 361. It certainly cannot be said that it is clear that proof of the matters which were stricken from the answers could have no bearing on the question of the defendants’ belief in the truth of the defamatory charge, and so tend to show the absence of actual malice. So it is considered to have been error to strike those portions from the answers. The orders, so far as they strike out portions of the answers, were appealable, under K. S. sec. 3069, subd. 4, on the ground that they involve the merits of the action or some part thereof. Kewaunee Co. v. Decker, 28 Wis. 669. Subd. 4 is omitted in the revision of that section by ch. 212, Laws of 1895. Those parts of the orders appealed from which direct certain portions of the answers to be made more definite and certain are of the class denominated discretionary orders, and are not appealable unless discretion is abused. McCarville v. Boyle, 89 Wis. 651. In this case no abuse of discretion is observed. By the Court.— So.much of the orders appealed from as strikes out portions of the answers is reversed; as to so much as requires parts of the answers to be made more definite and certain, the appeals are dismissed; and the cause is. remanded for further proceedings according to law. Neither party is to have costs. The respondent is to pay the clerk’s costs.