Pfister v. Sentinel Co.

Baedeen, J. The first ground upon which it is sought to reverse the order appealed from is that the complaint shows upon its face that the publication in question was a newspaper report of a “ judicial, legislative, or other public official proceeding authorized by law, and of some public statements in the course of such proceeding,” and as such privileged under sec. 4256<z, Stats. 1898. That section reads as follows:. “ The proprietor, publisher, editor, writer or reporter upon — 578 — any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law, or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt anjr such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any head line or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled-or spoken concerning him in the course of such proceeding by some other person. Any true statement, explanation, correction or retraction published without comment in any such newspaper within a reasonable time after any publication in violation of this section, or after the publication of any libelous matter, or in the next issue after notice of such publication, may be introduced upon the trial of any such action as a sufficient defense against any imputation of malice and against the recovery of any damages except actual damages.” Neither the scope nor constitutionality of this'law is argued by the appellants. It is simply asserted that the matter published comes within the purview of the law, and the argument presented is in support of that view. If this argument is well founded, then the question suggested would properly be for consideration; if not, then the alleged libelous article must be considered, tested, and disposed of under the settled rules of law governing such matters. We find no difficulty in the determination of this point. The chief reason urged by appellants in support of their position is that it nowhere appears in the complaint “ that the report in question is not a true or is not a fair report of this public official proceeding.” The difficulty with this contention is that the article in question is not, and does not pur — 579 — port to be, a report of any such proceeding. On tbe contrary, after reciting that an injunction had been obtained on the ground of a conspiracy between Payne and Pfister, it charges that they have, by means of their wealth and political power, obtained absolute control of the mayor and a majority of the councilmen, and that the men who did the buying have in no wise lost caste; that Mr. Payhe is looked up to in national affairs, and Mr. Pfister continues to be a leader in social circles. By what process of reasoning can it be said that this is a “ true and fair report,” or any report at all, of a judicial or other public official proceeding, or of any speech, argument, or debate in the course of such proceeding ? Beyond the recitation that an injunction had been secured, there is nothing in the article that approaches the semblance of a report. The substance of the publication is plainly the opinion of the writer, couched in language easily understood and certain of intent. As stated in the opinion of the trial judge: “Here is a direct charge of bribery involving the plaintiff as one of the bribers; a strong charge to the effect that the moral sense of the community has fallen very low, because the plaintiff, and the others charged with him, appear without loss of caste in Milwaukee, and are leaders in political and social circles.” The matter printed involves the conclusions and deductions of the writer, is clearly libelous se, and from its very nature could not have been, and cannot by the most generous latitude of construction be construed to be, a report of a judicial or other public official proceeding. We think it sufficiently appears from the complaint that the imputations of bribery and corruption were distinctly the product of the defendants, and .are of such a nature, when the whole article is considered, as not to come within the purview of the statute under the broadest or most liberal interpretation possible. If the validity of the statute be admitted, a publication, to be privileged, must have been made in good faith, must be a true — 580 — and impartial report of the matter involved, and without exaggeration or the introduction of irrelevant defamatory matter. The publication in question is very far from the line suggested, and hence the ruling of the trial court on this branch was amply justified. See Buckstaff v. Hicks, 94 Wis. 34. 2. The second ground of error is based upon the claim that the complaint does not state a cause of action as against the defendants Ilsley, Tweedy, and Rublee, who were directors of the defendant corporation. We have held that the publication in question was libelous, and therefore actionable. All persons engaged in publishing and circulating a libel are responsible therefor, and may be proceeded against either jointly or severally. Newell, Slander & L. 240; Belo v. Fuller, 84 Tex. 450; Smith v. Utley, 92 Wis. 133. Officers, stockholders, or members of a publishing corporation are not liable for a libelous publication simply because of official position or membership, unless they come within one of the exceptions hereinafter named. Their liability, if any, springs from their active agency in producing and circulating the libel. But if it be shown that they in any way aided, assisted, or advised its publication or circulation, or that their duties as officers or agents of the concern were of such a character as to charge them with the performance of functions concerning the publication and circulation of the paper, such duties being of such nature that the law implies that such officers or agents knew or ought to have known of the publication, they are liable, and cannot defend on the ground merely that they did not know about the libel until after it was published. This was distinctly held in Smith v. Utley, 92 Wis. 133, and the cases and text-books sustaining the proposition are there cited. It is elementary law, as applied to code pleadings, that a complaint will not be overthrown on demurrer unless it is wholly insufficient. Every reasonable intendment is to be — 581 — made in its favor. Morse v. Gilman, 16 Wis. 504; Miller v. Bayer, 94 Wis. 123; Valley I.W. Mfg. Co. v. Goodrick, 103 Wis. 436; Miles v. Mut. R. F. L. Asso., ante, p. 421. In pursuance of this rule, and by aid of the statute (sec. 2668, Stats. 1898), “if the essential facts can be gathered from the pleading, or may reasonably be inferred from its allegations, it is good, though such allegations be in form uncertain, incomplete, and defective.” See Flanders v. McVickar, 7 Wis. 372; Horn v. Ludington, 28 Wis. 81; Merrill v. Merrill, 53 Wis. 522. A narrow rule seems to have been indicated in Simonsen v. Herold Co. 61 Wis. 626, in testing a complaint somewhat similar to the one in question. There the allegation was that the defendant Colman “ was and is the principal proprietor of said Herold Company, and interested in, and proprietor and manager of, said newspaper.” In the decision it was said, “ The averment that he is manager of the newspaper does not necessarily import that he controls its columns.” The real question at issue was whether it might reasonably have been inferred from all the allegations of the complaint that he had such control, and not whether any particular allegation necessarily imported such á conclusion. The real question, therefore, is whether, by a fair and reasonable construction of all of its allegations, the complaint charges that these defendants caused this publication merely in the sense that they carried on the business affairs of the corporation, or whether, as such officers, they had adopted a policy for the corporation in opposition to the street-railway ordinance, and of abuse and defamation of plaintiff, and whether it may be reasonably inferred therefrom that the publication in question was made in consonance with and pursuant to the policy so adopted, so that it can be said their action comes within the rule of law stated. It is not claimed that the complaint shows that the directors, as such, were charged with duties with reference to the publication — 582 — and circulation of the newspaper from which the law would imply knowledge, and consequent liability for the publication of a libel, by virtue of mere official position. The complaint does not by positive allegation charge that the directors advised or counseled this specific libel. It does allege, however, that, during the pendency of said ordinance, Myriolc, as managing editor, and the other defendants, as the majority of the board of directors, had caused the corporation, in its newspaper, to continuously oppose the adoption of said ordinance, and had caused the publication of many violent and inflammatory articles in opposition thereto, impugning the motives of the members of the council who favored the same, and insinuating that the plaintiff was seeking to secure votes therefor by bribery and other criminal and unlawful methods and influences, and had maliciously pursued the plaintiff with insinuations of criminal acts, and caused to be published in the said newspaper veiled insinuations that the plaintiff was guilty of bribery. A natural, and we may say a necessary, inference from these allegations is that the corporation, under direction of said defendants, had adopted a distinct line of policy in opposition to the ordinance and condemnatory of the plaintiff. Then follow the allegations quoted in the statement. While not stated in so many words, the inference follows as naturally and reasonably as though so stated that the libelous publication was made in pursuance of the policy theretofore adopted by said directors. Construing the complaint with that liberality which the law demands, and indulging in every reasonable intendment to support it, we reach this conclusion: The defendants, who constitute the majority of the board of directors, had caused the corporation, through its newspaper, to adopt a policy of bitter opposition to the adoption of the proposed ordinance; that in following out this line of policy they had caused violent and inflammatory articles to be published — 583 — defamatory of the plaintiff and insinuating that he was guilty of criminal and unlawful methods in attempting to seeuré its passage, and had been guilty of bribery; that in further continuance thereof they caused the false and defamatory matter mentioned to be published and circulated. Their liability, if any,’ must, rest upon the fact that they have, by their official action as directors, caused the corporation to adopt a slanderous policy towards plaintiff, which resulted in the publication and circulation of the alleged libel. It may be that the proof will fall short of the allegation. With that we have no concern. We deal only with the allegations of the complaint and the natural and reasonable inferences arising therefrom. Considering such allegations, and indulging such inferences, we conclude Jhat sufficient appears in the complaint to bring the defendants within the rule of responsibility before mentioned. It is in the respect heretofore suggested that the complaint herein differs from that in Simonsen v. Herold Co. 61 Wis. 626, and is, therefore, distinguishable from it. It is not to be understood that such directors are responsible merely because they have, by official action, caused the corporation to adopt a policy of opposition to the ordinance and critical of plaintiff. Such policy must be shown to be one of vilification and libel, and it must appear that the publication in question was made pursuant thereto, or that they actually advised or counseled this specific act; else they cannot be held liable. By the Oowrt.— The order appealed from is affirmed.