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Cole and another v. Christensen
WiNsnow, O. J.
Only two contentions are made which we deem it necessary to discuss: (1) that the published article is not libelous, and (2) that there was prejudicial error in the charge.
1. The article was unquestionably libelous per se; it charged the plaintiffs with fraudulently misrepresenting to farmers the condition of the market in order to induce them to sell their stock. This is an imputation of business dishonesty and hence libelous. Gottbehuet v. Hubachek, 36 Wis. 515; Singer v. Bender, 64 Wis. 169, 24 N. W. 903; Robinson v. Eau Claire B. & S. Co. 110 Wis. 369, 85 N. W. 983.
2. The bill of exceptions states that the trial judge stated to the jury in his charge that “damages are of two kinds— compensatory, or punitory, and exemplary.” This is incorrect, of course, and it is hardly to be supposed that the trial judge actually said it, but rather that there was error on the part of the reporter. This is rendered more certain by the fact that the trial judge proceeded thereafter to differentiate between compensatory and exemplary or punitive damages' at considerable length. In view of this fact the jury could not have been misled in any event.
After charging the jury fully that punitive damages were such as were awarded by way of punishment and could only be given when the defendant was actuated by malice or ill will, also that the granting of such damages rested in the discretion of the jury, the trial judge said: “But you must'not understand from this that the presence-or absence of actual malice or ill will has any bearing on the question of punitory
[411] damages. Plaintiffs are entitled to sueb damages if they have been libeled.” This is plainly error and must have been prejudicial on the subject of punitory damages. Inasmuch, however, as these damages are separately assessed, the error may be corrected by now disallowing them.
By the Court. — Judgment modified as of its date by reducing the same to $254.21, and as so modified affirmed with-' out costs, except that respondent is to pay the fees of the clerk of this court.