Finnegan v. Eagle Printing Co.

Jones, J. It ■ is very clear that tbe publication complained of-is libelous per se. ■ It is a publication of language which tended to injure the plaintiff in his reputation and to degrade and disgrace him in society, arid by a long line of decisions in this state such a publication is libelous. It is urged that the newspaper, only published statements communicated to it by a third person and that hence the' publication is not libelous. But it seems well settled that this is no defense. Newell, Slander & L. (3d ed.) p. 425; Haines v. Campbell, 74 Md. 158, 21 Atl. 702; Brewer v. Chase, 121 Mich. 526, 80 N. W. 575; World P. Co. v. Mullen, 43 Neb. 126, 61 N. W. 108; Dole v. Lyon, 10 Johns. (N. Y.) 447. We are convinced that no.privilege is pleaded in the part of the answer demurred.to. It is argued by respondent that it comes within the class of publications privileged as a report concerning judicial proceedings. Part of sec. 4256a, Stats., is as follows: "The proprietor, publisher, editor, writer ‘Or reporter upon any newspaper published in this ■ state ■ shall not be-liable in any civil action for libel for the publicatio.n. in such newspaper of a true and fair report of any judicial, legislative <pr other public pfficial proceeding authorized by law or of any public statement, speech, argument or debate in the course of such-proceeding.” ’ [10] . Doubtless the execution and writs of attachment were issued in the usual formal manner without having been drawn to the attention of the court. • . ■ Great freedom is allowed to parties in stating in their pleadings the facts relied on to establish their rights. Otherwise they would often be denied redress for their grievances. But it is not necessary to the administration of justice that a party who is thus privileged should cause charges or accusations he may make in his pleadings to be published to the world. Nor is it necessary that others should publish them before they have been brought to the attention of the court. Until that time the publication cannot be said to be a report of judicial proceedings. This was the rule at common law and has not been changed by statute. In a very full and able opinion by Mr. Justice Dodge in Ilsley v. Sentinel Co. 133 Wis. 20, 27, 113 N. W. 425, the court said: “Unless obvious beyond reasonable doubt, we should be slow to believe in an intent to authorize and privilege publications so fraught with injury to individuals and for which justification in public policy or other reason is so entirely wanting. We do not find such purpose obvious, and therefore cannot think that the legislation in question goes beyond the rule of the common law in sheltering a report of any step in an action which does not in some way involve at least the attention and invited action of some judicial officer.” It is true the writs of attachment contained the name of the judge and were issued by the clerk with the seal of the court. The execution was signed by the attorney for the judgment creditor. Presumably the affidavit for attachment was signed by the plaintiff in the suit or by his attorney. We see no reason why any greater latitude should be given to the publication of these documents than to the publication of a complaint. The rule is well established in this state that the publication of pleadings or other preliminary papers to which the attention of no judicial officer has been called and no judicial attention invited is not privileged. [11] This-rule would -be of little effect if the contents'of such documents could be given to the world under the pretense that in serving them a sheriff is a judicial officer or is acting in a judicial proceeding. It is claimed by respondent’s counsel that the acts of the sheriff in serving process were matters of such public concern as to be privileged. There is of course a large class of cases where publications are privileged or conditionally privileged because they relate to matters in which the public are interested. An English judge stated the rule somewhat broadly when he said: “A clergyman with his flock, an admiral with his fleet, a general with his army, and a judge with his jury, are all subjects of public discussion. Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary though unpleasant appendage to his office.” Kelly v. Sherlock, L. R. 1 Q. B. Cas. 686. But it is the law of this state that publications even concerning the acts of public officers containing insult, contemptuous phrase, or false and libelous statements of fact, are not privileged. Putnam v. Browne, 162 Wis. 524, 155 N. W. 910; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111. But the libelous language in this case was not written of a public officer but of a private citizen, and it is a prívate citizen who brings the action. On this subject it suffices to quote the language of .Mr. Justice ■ Barnes in Pfister v. Milwaukee Free Press Co. 139 Wis. 627, 121 N. W. 938: .“Neithér do we think the defense of ‘privilege’ or ‘fair criticism and proper comment’ was permissible in this case. The plaintiff held no office and was not a candidate for any. Neither did heNelóng'tóány cláss which by seeking and inviting public, patronage .renders .itself amenable to public comment and -criticism which could not rightly be applied to a-private citizen. - It-appears that .the plaintiff is a.private citizen, and a.false, and defamatory .publication concerning such a one .is-not privileged mérely-because it may relate to some public'matter.” ' • ' [12] Having decided' that the publication was libelous and .that it was not privileged, we regret that the state of the pleadings is such that we cannot sustain the demurrer. The second defense sets up at some length a justification. The third defense, which is demurred to, refers to the second defense and “makes it a part hereof with the same force and effect as if re-alleged herein.” We cannot disregard this incorporation of the second defense into the third nor treat it on demurrer as mere surplusage. Hence the order must be sustained. By the Court. — The order of the court is affirmed.