Hathaway v. Bruggink

Eschweiler, J. The only proposition urged by defendants on this appeal is that the letter in question is within the class of absolutely privileged communications and for that reason cannot be made the basis of an action for libel. If it be such, then it necessarily follows that no right to the proposed examination of defendants under sec. 4096, Stats., could be predicated upon it under the unquestioned rule in this state. State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900. Plaintiff insists that the communication in question neither charges the violation of any law nor does it ask for any specific relief, and that therefore it does not come either within the class of absolute or of qualified privilege, and that the expression in the letter referring to him as “(being up to his neck in booze most of the time himself),” which is relied upon as the basis for this libel action, is such' a false, irrelevant, unfair, and contemptuous expression as to make it libelous no matter what view may be taken of the balance of the communication. In the present disposition of this case the letter must be tested by what appears on the face of it, and anything extrinsic, such as is the defendants’ affidavit, must at this time be disregarded. We think that a reasonable and fair construction of this communication as it is written and in its entirety requires [394] the conclusion that it is in substance a complaint to the attorney general of this state conveying to him the belief of the writers that the excise laws of this state were being violated in their home town; that no help' in that regard could be had from the plaintiff as sheriff or from the district attorney of that county; and that the writers wish that something be done by the attorney general and that they may “have the privilege of having peace in Burnett.” The letter states the writers’ belief that liquor is being sold in their village to minors. If such sales were being made they were in violation of sec. 1577, Stats. Such sales would be violations of the terms and conditions prescribed in the bond required of every licensed saloonkeeper by sec. 1549, Stats. Under this sec. 1549 an action may be brought against the principals and sureties in such bond for such breach. Such action could be brought in the name of. the state of Wisconsin, and under sec. 14.53, Stats., the attorney general may be required to- and is authorized to represent the state in actions in which it shall be a party. The plaintiff also argues that the language in the first paragraph of the letter should be construed to mean nothing, more than that the saloons therein referred to are open in the sense of permitting persons to enter therein on Sundays, rather than charging that there is a violation of sec. 1564, Stats., which prohibits the selling, giving away, or bartering of any intoxicating liquors on Sunday. A consideration of the entire language of the first paragraph of this letter would certainly give warrant to the person to whom the same was addressed tO' understand therefrom that there were sales being made in saloons on Sunday and that there was intended to be charged a violation of the law prohibiting the doing of business in' the way of selling intoxicating liquors on Sunday, rather than the charge that the keepers of the saloons were going through the idle formality or empty courtesy of permitting persons to enter through the back [395] door and then to wander about therein with unsatisfied thirst. Whether, however, the attorney general might, as suggested by defendants, under the provisions of sec. 3180a, Stats., proceed to abate such saloons so violating the Sunday law as being such a public nuisance as is defined under sec. 1563, Stats., in view of what was held by this court in the case of State v. Wacker, 71 Wis. 672, 38 N. W. 189, it is not necessary to now determine and we therefore express no opinion upon that proposition. The letter, therefore, being one that calls to the attention of a proper public official, who is authorized to take some action thereupon, an alleged violation of the law, it brings the entire communication within the rule of qualified privilege. The case here is controlled by the case of Joseph v. Baars, 142 Wis. 390, 125 N. W. 913. There a communication to a village marshal by the defendant, for the purpose of having criminal proceedings instituted against the plaintiff therein, was held to be a privileged communication if written in good faith, and that the defendant would be protected and held immune from an action for libel unless the plaintiff was able to prove that there was actual malice in the making of any false statements therein contained, and that such malice might be proven by evidence showing that such statements were made recklessly or based on nothing in the way of information. The plaintiff in his affidavit has alleged that the communication was made with malice, and this the plaintiff may be required to prove upon the trial. Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403; Cooley, Torts, p. 236; Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759, 4 L. R. A. n. s. 149 ■The principle here involved and the situation are substantially different from any disclosed in the authorities relied upon by defendants in their argument on this appeal, that the communication is one entitled to the protection afforded by the rule of absolute privilege. In Larkin v. [396] Noonan, 19 Wis. 82, relied upon, the communication was to the governor, who under the law had the power of removal of the sheriff concerning whom the communication was made, and because of such power of removal it was said that the action contemplated or requested by the communication, namely, the removal of the plaintiff sheriff by the governor, so partakes of the nature of judicial proceedings that it should come within the same rule of absolute protection as governs all testimony, statements, or communications in or with reference to strictly judicial proceedings. The same principle was recognized in the subsequent case of Werner v. Ascher, 86 Wis. 349, 56 N. W. 869. That the absolute privilege extends to statements both malicious as well as false is indicated in such cases as Schultz v. Strauss, 127 Wis. 325, 106 N. W. 1066; Keeley v. G. N. R. Co. 156 Wis. 181, 145 N. W. 664; In re Quarles, 158 U. S. 532, 15 Sup. Ct. 559; Reycraft v. McDonald, 194 Mich. 500, 160 N. W. 836; Flynn v. Boglarsky, 164 Mich. 513, 129 N. W. 674; Connellee v. Blanton (Tex. Civ. App.) 163 S. W. 404. We cannot at this stage of the case hold that as matter of law the expression appearing in parentheses in the quoted letter above, that plaintiff himself “is in booze up to his neck,” is such an unnecessary, irrelevant, and gratuitous charge and insult that it would be excluded from the protection of the rule of qualified privilege, as was held as to- the expressions involved in such cases as Putnam v. Browne, 162 Wis. 524, 155 N. W. 910; Arnold v. Ingram, 151 Wis. 438, 138 N. W. 111. Under sec. 1553, Stats., the plaintiff as sheriff is required, upon knowing or being credibly informed that any offense has been committed relating'to the excise laws, to make complaint against the offending person to a proper judicial officer, and for neglect or refusal so to do such officer shall be deemed guilty of a misdemeanor. Such being the case, it may be that the jury may find under evidence that may be placed before them that there was some reasonable connection between the idea intended to be con [397] veyed by the rather crude expression thus complained of and the failure, if any there were, of the sheriff to proceed against persons who were violating the excise law, and the question, therefore, as to whether or not such expression was gratuitous and irrelevant and therefore outside the privilege must be left for the determination of the jury. It follows therefrom that the trial court was right in holding that there might be issues of fact to be"determined by a jury in the case and therefore that the proposed examination was permissible. By the Court. — Order affirmed.