Fitzgerald v. Piette

The following opinion was filed April 3, 1923: Eschweiler, J. The defendant argues that the demurrers interposed to the two causes of action should have been sustained, it having been conceded by plaintiff, as appears from the record before us, and the contrary is not here urged, that the words relied upon in each of the separate causes of action did not import the charge of a commission of a crime by the plaintiff. Construing the entire language of the first cause of action, though embraced in two distinct statements, yet all part of one address, made by defendant to his congregation on July 31, 1921, concerning plaintiff, we are of the opinion that so construed together they support a conclusion that their plain and reasonable import charged a lack of fidelity, honesty, and integrity by plaintiff in the discharge of his duties as trustee and officer of the congregation, and because so tending to disgrace and disparage him as such officer they were slanderous per se. It is urged that, to be recognized as sufficient foundation to support an action for slander, words tending to disparage or discredit one in an official capacity must relate to one as a public officer only. We can see no reason for such suggested distinction, and the rule seems to be well established'that [631] language tending to discredit or disparage any one holding . an office, In the broader sense of the term, whether in a private corporation or any form of voluntary association, is considered, for present purposes, as though spoken of one who is a public officer. Doherty v. Lynett, 155 Fed. 681; 25 Cyc. 352; Newell, Slander & L. (3d ed.) pp.’ 212, 233. We are therefore satisfied that the demurrer to the first cause of action was. properly overruled. On the second cause of action, however, construed as it now must be, upon the challenge to it by the demurrer, entirely independent of what is charged in the first cause of action and independent of the testimony on the trial, we are forced to the conclusion that it is controlled by the ruling of this court in the case involving substantially similar language of Laurent v. Van Somple, 161 Wis. 354, 154 N. W. 366, where the. words spoken by the defendant, a priest, to his congregation of the plaintiff, a blácksmith, secretary of and one of the board of trustees, were: “What was done between January and March, 1913, I am not responsible for. There was sixty-odd dollars collected that I cannot account for. I have nothing to show. This is for accounts of January and February, 1913. The books show that this was collected, but there is no account to show what became of it.” The words here before us are: “Six hundred eighty-one dollars was collected in 1920 for St. Benedict’s Colored Mission. Father Stephan received five hundred eighteen dollars. Where is the difference? What became of the balance?” Construed, as the}’- must be, by the language alone (Lubcke v. Teckam, 179 Wis. 543, 191 N. W. 968), these words carry on their face merely a charge of imperfect or slovenly bookkeeping, as in the above case, and are not actionable per se. See, also, Schnobrich v. Venske, 146 Minn. 21, 177 N. W. 778. The demurrer to the second cause of action should therefore have been sustained. Defendant by his answer pleaded a conditional privilege [632] as to any statements he may have made and has urged that plea here. The jury, however, found express malice, and such a finding, if sustained, takes the question of conditional privilege out of the case. The findings in this regard are challenged by defendant. No useful purpose would be served by going into the details of the evidence. The verdict has support and must stand. Other errors are assigned relating to the charge to the jury and on questions of admission of evidence. Another •assignment is based upon refusal to grant a new trial on account of a showing made by affidavits subsequent to verdict relating to the subject matter of the examination of one of the jurors on the voir dire. An examination of all these assignments satisfies us that they are not well taken. The trial court held that the damages as assessed by the jury and aggregating for the two causes of action $16,000 were highly excessive. With that view we agree. He also held that, though excessive, it could not properly be "considered as indicating such perversity as required the setting aside of the entire verdict, and with this conclusion we also agree. In his written opinion disposing of the motions after verdict and referring to the option he gave first to plaintiff and then to defendant to have judgment entered for the $2,200 damages in place of the $16,000 as found by the jury, the court stated, referring to the reductions in both compensatory and punitory damages in the two causes of action, as follows: “These several amounts and total are considered as low and as high as an impartial jury, in the exercise of a sound discretion, acting reasonably upon the evidence, would be warranted in assessing upon another trial.” The method thus indicated by the trial court of fixing the optional sum as high and as low as would be fixed by a jury on another trial is not the method indicated as the proper one in Gerlach v. Gruett, 175 Wis. 354, 360, 185 N. W. 195. But under the authority of sec. 2405m, Stats. [633] (ch. 214, Laws 1913), we shall direct the entry of that which we deem to be the proper judgment in this case, and for that purpose consider that the sum of $500 compensatory and $500 punitory damages as fixed by the trial court for the first cause of action shall be deemed to be the lowest sum that would probably be fixed by a jury on a retrial of this case, and for that amount the plaintiff should have judgment. By the Court. — Judgment modified by striking therefrom the $1,200 allowed as damages for the second cause of action, and then affirmed in the sum of $1,000 damages, defendant to have costs in this court. A motion for a rehearing was denied, with $25 costs, on June 5, 1923.