Gerlach v. Gruett

Vinje, J. It was suggested upon the oral argument that there was an inconsistency between answers to questions 1 and 2 and 4 and 5 because questions 1 and 4 as answered included a finding that defendant was actuated by good-faith motives and not by malice and hence contradicted the answers to questions 2 and 5 finding malice. In view of the instructions given and the wording of the questions we think the answers to questions 1 and 4 found only that the purpose fon which the letters were written and the persons to whom they were directed were within the field of conditional privilege and that the defendant believed the charges to be true, but that they did not find entire good faith and absence [359] of malice. One may believe charges to be true, be within the field of conditional privilege so far as purpose of communication and persons addressed are concerned, and yet be actuated by express malice. If express malice be found it destroys the conditional privilege that would otherwise obtain. Rude v. Nass, 79 Wis. 321, 328, 48 N. W. 555; Joseph v. Baars, 142 Wis. 390, 125 N. W. 913; Arnold v. Ingram, 151 Wis. 438, 458, 138 N. W. 111; Williams v. Hicks P. Co. 159 Wis. 90, 150 N. W. 183. So we conclude there is no inconsistency between the answers to the specified questions. We shall refer briefly to only a few assignments of error because, for reasons to be stated, the case must go back for a new trial unless plaintiff accepts the option granted by this court. The court struck out a portion of defendant’s answer which alleged in substance that during the war plaintiff refused to preach in the English language though petitioned to do so by members of the parish, thus indicating, it is alleged, a lack of patriotism. We fail to see how that was relevant to any issue arising out of the alleged libel, its only purpose could have been to prejudice the plaintiff in the eyes of the jury, and the court properly struck out that portion of the answer. The court likewise properly refused to receive evidence as to the duties of a Lutheran minister to his congregation to the effect that a stricter rule of morals was required than in ordinary life, because the conduct charged in the letters is adequately condemned by the prevailing codt of morals as well as by the law. The court also properly refused to submit questions eliciting the fact as to whether or not the matters charged in the letters were true, because the evidence was too vague and inconclusive to sustain a finding that they were true. We shall not examine the alleged erroneous portions of the charge relating to damages because the verdict as to damages was set aside by the trial court, and we must set [360] aside his assessment because he erred in making it. He gave an option to plaintiff to take $500 compensatory damages for each letter written, stating that he did so because he considered “that a jury moved by proper, considerations in this respect would hardly go above $500 as damages for each of the letters, or $1,500 in gross.” In giving the option to the plaintiff he should have placed the amount as low as an impartial jury on the evidence would probably name, not as high as such, jury would probably go. The latter must be done when the option is given to the defendant. Heimlich v. Tabor, 123 Wis. 565, 102 N. W. 10; Beach v. Bird & Wells L. Co. 135 Wis. 550, 116 N. W. 245; Katz v. Miller, 148 Wis. 63, 133 N. W. 1091; West v. Bayfield M. Co. 149 Wis. 145, 135 N. W. 478; Krawiecki v. Kieckhefer B. Co. 151 Wis. 176, 138 N. W. 710; Poler v. Mitchell, 152 Wis. 583, 140 N. W. 330. For the purpose of permitting this unfortunate litigation to end, we have concluded to give plaintiff the option to take judgment for $200 as compensatory damages for each letter published, or $600 in gross,' or a new trial, such option to be exercised within thirty days from the date of the receipt by the circuit court for Fond du Lac county of the record from this court. By the Court. — Ordered accordingly, with costs on this appeal to the defendant.