Williams v. Hicks Printing Co.

MaRshall, J. The essentials of a libelous publication are too well established in the law to require discussion or even citation of authority. There is no difference of opinion, as we understand it, between counsel, or counsel and the court, in respect to the matter. Differences, commonly, in such field spring, not from what is libelous in the abstract, but whether the particular article would ordinarily be understood so as to have a libelous effect. That, generally, is a question of law, but sometimes the characterizing circumstances are such that it is a question of fact, or of mixed law and fact. The law of libel is of much importance. In the field within which libelous activity may operate, great wrongs may be perpetrated, resulting in loss, sometimes beyond the competency of legal remedies to fully redress, because of there being no accurate standard by which the injuries can be accurately measured. In theory, that is wrong because, in contemplation of law, the collective judgment of a constitutional jury, guided by a wise judicial administrator, is our highest attainable ideal of justice and, so, must be deemed infallibly right in law, though morally it often is not. But it answers to the constitutional guaranty of “justice . . . completely and without denial . . . conformably to the laws.” [Const, art. I, sec. 9.] Character is man’s choicest treasure. The wrongdoer who robs one of land or money or anything material, essential to his pursuit of happiness, is reprehensible and unworthy of a place in the social state, but one who intentionally robs another of his good character is a wrongdoer in a higher degree, from a moral standpoint, whether so recognized in the law or not. Life itself without worth-while character is of little or no value to its possessor or any one else, well said by lago: “Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ’Twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” — 101 — Thus it is evident that cases of tliis character are of no trifling nature, especially when the professional life of one is involved and the alleged assassin of it is a newspaper proprietor whose activities reach a wide circle, and who has come to he looked to for guidance of public thought. Such a person-occupies a very high place in community life. His legitimate function is to inform, to educate, to entertain, to guide, to dignify the good by. legitimate methods, to stand for truth and condemn error and, beyond and environed in these generalities, to satisfy the legitimate desires of the reading public, — never to maliciously accuse falsely, or blacken one’s character nor expose him to public hatred, contempt, and ridicule, nor produce injury to him in his business, trade, or profession. Thus, in general, malice is an essential element of libel, but not, necessarily, malice in the sense of actual ill will and intent to injure, constructive malice, so called, — perpetration of the act without lawful excuse — is sufficient. One need not go further on the subject of malice in proving a charge of libel than to prove the publication, unless the situation is such as to fall within the field of conditional privilege, and then malice in law is circumstantially rebutted and malice in fact, or express malice, as it is otherwise called, is required. . So it is not to be thought that mere good faith, honest belief in the correctness of the publication, or good motives, or accident or inadvertence, is, of itself, a defense, or even sufficient to mitigate as to actual damages, because such faith, belief, and motive are not inconsistent with malice in law arising, as a legal result, from the perpetration of the act of publishing an article, the natural tendency of which is to make its victim appear ridiculous-or contemptible, or a subject of hatred, or to disgrace him in society or injure him in his business. If a published article naturally tends, as suggested, the right to recover general damages follows as matter of course, in the absence of truth as a justification or circumstances of — 102 — legal exfeuse, this, as indicated, not including mere negligence, accident, good faith, good motives, or sense of duty, except as said, in the field of conditional privilege where something more.than implied malice is required. General damages, which so follow, may he added to by exemplary damages, upon proof of that actual malice which overcomes the protection of conditional privilege. Thus one cannot efficiently claim immunity from liability for damages inflicted by publishing with express malice a false and defamatory article, by putting up the shield of conditional privilege. Joseph v. Baars, 142 Wis. 390, 125 N. W. 913; Arnold v. Ingram, 151 Wis. 438, 138 N. W. 111. The law as to what is within the field of conditional privilege and what is not, needs to be little discussed here, if at all. Such as it is, it applies to newspapers as well as to individuals. The freedom of the press has never been, and quite likely will not be, extended so as to accord to persons circumstanced as the respondents were special rights to injure or destroy human character by libelous publications. There is more reason for restricting the privilege respecting such particular class because of the special opportunity to do harm, than for extending it. Conditional privilege as regards newspaper activity does not go beyond fair criticism in respect to' the relations of persons to the public and report of facts.. It does not extend to false statements of fact or unjust inferences, nor taunts, nor contemptuous and insulting phrases. That is sufficient to condemn the article in question. The foregoing stated principles need no support by citations. Applied to the facts of this case the article was libelous, as matter of law, and it is so conceded, though the concession is far too restrictive. It was replete with false 'statements of fact, contemptuous allusions, and sarcastic phrases, well calculated to humiliate, and it was devoid of all cast of fair comment. No one could read it and partake of its spirit without regarding its victim as of low degree as a — 103 — citizen and lawyer; no one could be the butt of such ridicule without feeling a keen sense of humiliation and loss. Counsel srek to minimize the wrong' by claiming that the.only false statement contained in the article is as to appellant being a “puny little lawyer.” The article is to be looked at in its entirety, not in mere matters of detail. If it were true that several false detail statements were claimed and truth as to all but one was established, the article, as a whole, still -being libelous, plaintiff would be entitled to recover substantial damages. But as we read the record the article,' in general scope and details, stands without justification by proof of truth. The evidence, without dispute, is that appellant was a reputable lawyer, — one of high standing, — who had been long in practice where the paper was published and circulated; that he was not a “puny little lawyer” in any sense of the word. He was not a “neophyte,” a novice, a mere beginner. The suggestion, involved in the use of that term, has no basis in truth whatever. Ueither was there any proof to .show that appellant could not have bought the newspaper plant and made the offer legitimately. ITe seems to have had at least one wealthy client and may have had many who were quite willing to test the fairness of the assessment of such property by a bona fide oiler to buy it at the stated price." The article indicated a studied attempt to belittle with insinuations and assertions which were the mere ebullitions of perverted partisan hostility to the efforts of appellant to serve his client’s cause. In detail and entirety it is plainly libelous as matter of law. As no justification was shown and the mitigating circumstances, if there were any, had no bearing on actual damages (Candrian v. Miller, 98 Wis. 164, 73 N. W. 1004; Pellardis v. Journal P. Co. 99 Wis. 156, 161, 74 N. W. 99), and there was no evidence to indicate appellant’s character was not such as would be affected in the ordinary degree by such.a wrong, while there was affirmative evidence that the degree of injury — 104 — was, quite likely, above the ordinary, it was error for the trial court to refuse to instruct the jury that he was entitled to recover his actual damages and regardless of the question of whether the publication was made with had motives or not. The jury should have been so instructed and, to guard against their committing error by finding merely nominal damages, they should have been made to appreciate that nothing short of substantial damages within the field of general damages would be adequate to the case. The law presumes, in such a case, that such damages were suffered as naturally and ordinarily flow from such a wrong under such circumstances. The standing of the injured one in the community is to be taken into consideration, his social station and relations, his business and its character, and all other circumstances bearing on the question. These are called general damages. There is no standard in law by which the loss in respect to such matters can be measured but the sound judgment of a constitutional jury under proper judicial guidance. The trial court instructed the jury: “It is for you to determine whether the charges have been proven and were published from good motives and justifiable ends.” That was error as has been indicated. The pleaded justification was not established in any substantial degree, and the jury should have been so plainly instructed instead of being left to find to the contrary and thus prevent appellant from obtaining the redress he was entitled to. Eor the errors indicated the judgment must be reversed. Other errors were committed which were so involved in the particular one that, without being specifically referred to, they will not be likely to occur again. There were still other errors committed which might or might not, by themselves be regarded as prejudicial to an extent requiring reversal. We will briefly refer to them to guard against the cause unnecessarily coming to this court again. — 105 — Complaint is made because tbe court refused to receive in evidence several articles published in respondents’ paper leading up to tbe particular one, and tbe articles published thereafter up to the time the jury retired to deliberate upon their verdict. That complaint is well taken. The pleaded articles were part of the record in the case. They were really in evidence without any formal offering. The ruling of the court refusing to permit them to b'e read was wrong. All of the articles had a very material bearing on the motives of respondents and the subject of punitory damages. The publications during the trial were circumstances of aggravation and might well have been considered quite persuasive in appellant’s favor on the subject of malicious purpose to injure characterizing the particular publication. The late publications were especially reprehensible. The court should not only have allowed the circumstance to go before the jury as tending to prove express malice, but, promptly, upon the course of the paper being brought to its attention, it should have reprimanded respondents, and, in case of their persist-ency, administered proper punishment. The practice of newspaper proprietors when on trial for libel being permitted to reach the jury, day by day, during the trial through the columns of the journal is not to be tolerated. If attempted it should be met in such a way as to redress the wrong and prevent its re-occurrence. As well might a party to any trial reach the jurors by written or printed communications, or even by going among them and verbally discussing the case and giving direction to their thoughts. Further complaint is made because the court permitted respondents’ witnesses to testify to their conclusions, opinions, and impressions in respect to the occurrences before the board of review, and refused to permit appellant to meet them by proof of just what was said and done, leaving the question of whether that constituted palliation of the wrong charged. The conduct of the trial in this respect does not meet with — 106 — our approval. The witnesses wbo were called before tbe board seem to have been quite offended, and particularly because of the course of their examination. All that might well be explained by their partisan hostility to proceedings which were perfectly legitimate. The material thing was whether there was just and adequate ground for the state of mind created by their experiences before the board. What was said and done was the test which should have been called for and, in the end, the jury should have been made to understand that, at best for defendants, the evidence bore only on the question of actual damages. Respondent Hides was allowed to testify, at length, as to what he meant by the use of the particular terms appearing in the article, his conception of his duty and his rights as a newspaper publisher. That course of the evidence, permitted under objection, was, in the main, wrong. ITow would persons ordinarily understand the article? That was the,question and, in the circumstances as to the right to recover, it was not a jury question; and as to the extent of the jury respecting compensatory damages the mere notion or opinion of respondent Hides was immaterial. The court should have-rested the meaning of the article upon that which would ordinarily be attributed thereto and not permitted the jury to be confused by the mere opinions of the accused. It should, at least, have confined all such evidence to the field of exemplary damages. The rule has often been stated. How would such an article ordinarily impress readers of it under the circumstances of its publication and circulation ? What one or more would understand, or did understand, or what the author intended is immaterial either on the question of whether the article is libelous or of what sum of money will measure the loss caused. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268; Pandow v. Eichsted, 90 Wis. 298, 63 N. W. 284; Arnold v. Ingram, 151 Wis. 438, 456, 138 N. W. 111. — 107 — There was proof in support of the plea of an offer to retract, as a mitigating circumstance, that prior to commencement of the action, respondents offered to publish a retraction of any statement contained in the alleged libelous article upon appellant producing to them satisfactory proof of such statement being incorrect; that being accompanied by a suggestion of still greater humiliation of plaintiff in case of his resorting to legal remedies for redress, and also accompanied by an offer to publish any signed article appellant might furnish for that purpose, such publication to be subject to such comments as respondents might see fit to make. Counsel requested the court to instruct the jury that such circumstance should not be considered in mitigation of the wrong done to appellant and it was refused. Uo reason occurs to us why the jury should not have been so instructed. Proof of such circumstance was made by respondents upon the theory that it, in a measure, so atoned for the wrong done as to remove any ground for punitory damages. The matter seems to have been dealt with to the jury in a way to affect their judgment even in the field of actual damages. The circumstance did not constitute an offer to retract in any sense rendering it worthy of consideration by the jury. The communication reaffirmed what was asserted in the published article and, in effect, challenged appellant to combat it, with a threat that if he should seek a legal forum for vindication instead of the field occupied by the newspaper, he would run’ serious risk of further humiliation. It was rather a matter in aggravation than mitigation, and the requested instruction should have been, given. It is needless to say that error was committed after verdict, in refusing to set it aside as contrary to the law and the evidence, and we may well add, the question of whether error of prejudicial character was not committed in refusing to relieve from the verdict on account of misconduct of respond — 108 — ents during the trial, challenges serious attention. "We may pass it without saying more, since more is not necessary for the case. In harmony with what was said at the start, no particular effort has been made to reinforce the points made in this opinion by a citation of authorities. The questions are very few and very simple. The significant error is the refusal to charge the jury, plainly and unequivocally, that the article complained of was libelous per sej that the pleaded justification was not established and that appellant was entitled to recover substantial damages for the wrong done to him. Quite likely he was prejudiced in respect to a substantial award for exemplary damages by being precluded from proving the circumstances of aggravation involved in the general course of respondents down to the time of the jurors retiring to deliberate upon the case, and the course of the evidence, placing before them the opinions and impressions of witnesses instead of facts and the refusal to instruct, and emphatically, that the so-called offer to retract was not such an offer in fact and was rather proper to be considered on the subject of aggravation than mitigation or justification. With the particular treatment as to the dominating errors and the general treatment as to the others it is thought that none of those complained of need occur upon a second trial. By the Court. — The jiidgment is reversed, and the cause is remanded for a new trial.