Gagen v. Dawley

Viwje, J. Upon defendants’ appeal no new questions are presented. The published articles were clearly libelous. Williams v. Hicks P. Co. 159 Wis. 90, 150 N. W. 183; Leuch v. Berger, 161 Wis. 564, 155 N. W. 148, and cases cited. And, as the jury .found, they unmistakably referred to plaintiff. [155] Evidence of Dawley’s financial condition was received as bearing npon the question of punitory damages. The court charged the jury that none could he assessed against him. The admission of such evidence is alleged as reversible error. There are two reasons why it is not. In the first place the court states that counsel for plaintiff told the jury that since they would be instructed not to assess punitory damages against Dawley they must disregard all evidence received as. to his financial condition. In the second place, in view of the character of the articles published and of the very modest sum assessed as compensatory damages the evidence could not have prejudiced the defendants. The court properly refused to permit defendants to justify by proof of current opinion or general rumor that plaintiff did not pay his bills. Haskins v. Lumsden, 10 Wis. 359; Earley v. Winn, 129 Wis. 291, 302, 109 N. W. 633. The statements in the articles to that effect did not purport to be made upon information, opinion, or rumor, but upon positive knowledge. The charge was full and fair and correctly stated the law of the case. The defendants have excepted to a portion of a sentence and-claim such portion is erroneous. The court charged r “The paper’s function is to guide, educate, and inform its readers, to stand for truth and to condemn error, and never to maliciously accuse falsely, or blacken one’s character, or expose him to public hatred, disgrace, contempt, or ridicule, (nor produce injury to him in his business, trade, or profession. Those published articles here in evidence have done some of those things if not all.)” The part in parentheses is excepted to and it is said to be erroneous because it tells the jury that plaintiff was injured in his business, trade, or profession when it is claimed the evidence showed he had none. It is obvious that the whole charge quoted does not so tell the jury. It tells them that the articles in question have done some of the things men [156] tioned, if not all, and that was true. A charge or a portion •of a charge correct as a whole cannot be successfully challenged by showing that a part of a sentence thereof standing by itself would be incorrect. The evidence shows that the defendant Dawley was the •owner and publisher of the paper, but that he had turned it •over to Fessenden; his son-in-law, to edit and had given him the earnings of the paper for some time. It appears, how■ever, by Dawley’s own testimony that he exercised supervision •over the paper and was in the office nearly every day or so; that he gave instructions as to its policy and cautioned Fes-senden against inserting libelous articles. Under the rule announced in Smith v. Utley, 92 Wis. 133, 65 N. W. 744, and Leuch v. Berger, 161 Wis. 564, 155 N. W. 148, he was properly held liable. The defendants will take nothing upon their appeal. There is some basis for the claim that the trial court reduced the compensatory damages from $500 to $250 on the theory that since, as he understood, the jury believed that each defendant would be required to pay only one half of .•$500, and since Dawley alone was financially responsible, he ■should be required to pay only what the jury is claimed to have intended. There is nothing, however, in the record to ;show the jury entertained suph an idea, and even if they did it would have been an erroneous one. The question they were called upon to decide was, how much damage had plaintiff sustained, not which of the defendants was able to pay it nor how much they or either of them were able to pay. But whatever may have been the reason the reduction was unjustified. Plaintiff was a married man forty-six years old •and had lived with his wife in the community for ten years .and was engaged at the time of the trial in the abstract and insurance business. lie had been municipal court reporter, .and had been a member of the Democratic county committee, .acting as secretary for twelve years. No justification of any [157] •of the charges made was established — hardly any attempted. Under such circumstances, bearing in mind the scurrilous nature of the publications, the jury assessed a very small sum. for compensatory damages. The court should have permitted the verdict to stand. By the Court. — The defendants will take nothing upon their appeal. Upon plaintiff’s appeal the order is reversed, .and the cause remanded with directions to enter judgment for plaintiff upon the verdict. Plaintiff is entitled to his •costs in this court upon both appeals, hut only one attorney’s fee of $25 will he taxed.