Elmergreen v. Horn

Maeshaxl, J. The exception to the court’s refusal to instruct as requested, in effect taking away from the jury the question of whether the article complained of was libelous per se, is all that need be considered. It was correctly ruled that to speak of a physician in his professional capacity as a “quack” is to call him a mere pretender, a person boasting of attainments he does not possess, and is libelous as a matter of law; so the argument here on that subject was unnecessary on the part of appellant. It was further correctly ruled, as conceded by appellant’s counsel, that in a ease of this kind, if there are conflicting reasonable inferences as to whether the alleged libelous language should be understood in a libelous sense, the right of the matter must be determined by a jury. The court concluded that there was such a conflict in this case, [388] and that appellant was entitled to recover if such conflict were settled in his favor. So it follows, necessarily, that if such conclnsion cannot he supported, the judgment must he reversed. Candor compels us to say that we cannot discover any douht, approaching the boundaries of reason, as to whether the term “quack” was used with reference to plaintiff in his capacity as a physician and surgeon. Look at the words, “Here comes ‘Doctor’ Ralph Elmergreen, the spick and span practitioner.” Note the significance of the inclosure of the word “Doctor” in quotation marks, indicating that the writer wished to dignify the plaintiff by the title of doctor in no other sense than that he was so called or held himself out to the world as such. Note the explanatory words immediately following the words “ ‘Doctor’ Ralph Elmergreen. the spick and span practitioner.” Do they not'indicate a clear purpose to speak of appellant as a pretender, a person depending upon his appearance and assumption to he a doctor and not upon his qualifications as such. That is followed by language indicating that appellant had endeavored, by some publication, to correct a report deemed by him to be false as to what was said by Mr. Samuel Barney, the candidate for Congress, in a political address delivered by him. In connection with an expression to the effect that the writer did not know or care what Barney in fact said, occurs this: “Sufficient be it that we do not look to a quack to set us right in the matter.” Taking the language all together, with the same certainty as it refers to plaintiff as a doctor, it refers to him as a quack doctor, as a mere pretender in his profession, a person not possessing the skill of a reputable practitioner of medicine, though assuming to have such skill. We must look to the words under consideration in their plain and popular sense, since there is nothing to indicate that they were liable to be otherwise generally understood. In testing the language of an alleged libelous article to dis> [389] cover whether it is such in fact, the common, ordinary meaning of the words thereof is deemed to he the true meaning, upon the theory that such meaning, in all reasonable probability, was the one suggested to the persons who read it. Campbell v. Campbell, 54 Wis. 94, 11 N. W. 456; Schild v. Legler, 82 Wis. 74, 51 N. W. 1099; Pandow v. Eichsted, 90 Wis. 298, 63 N. W. 284. ISTow it seems to us that it would be a waste of time to multiply words in demonstrating that the only meaning suggested by reading the article in question is that appellant was referred to therein as a quack doctor. If the learned circuit judge had not considered the matter doubtful, we should feel that one could not seriously present it for consideration from the standpoint of respondent. That the court erred in submitting the primary question of respondent’s liability to the jury, we regard so clear that we are not justified in saying more. By the Court. — The judgment appealed from is reversed, and the cause remanded for a new trial.