Flynn v. Reinke

Decision Date04 June 1929
Citation199 Wis. 124,225 N.W. 742
PartiesFLYNN v. REINKE ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Municipal Court of Outagamie County; Theodore Berg, Judge. Affirmed.

Lawrence Flynn, the plaintiff, brought this action against the defendants, Tobert O. Reinke and E. H. Court, copartners, doing business under the firm name and style of Reinke & Court, and the Western Union Telegraph Company, to recover damages alleged to have resulted from the transmission over the lines of the telegraph company of a libelous message, composed and sent by the defendants Reinke & Court to Lawrence Flynn, the plaintiff. The demurrer of the telegraph company to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was sustained, and the plaintiff appealed from the order sustaining the demurrer.John W. Kintzinger, of Dubuque, Iowa, and Morgan & Johns, of Appleton, for appellant.

Ryan, Cary & Ryan, of Appleton (Francis R. Stark, of New York City, of counsel), for respondents..

OWEN, J.

The complaint alleges that the defendants, Reinke & Court, composed and delivered to the Western Union Telegraph Company, at Appleton, Wis., the following message:

“Appleton, Wisconsin, December 14, 1927. Lawrence A. Flynn, 2159 Faye Street, Dubuque, Iowa. Advise Pace by wire how you wish to settle with us on money collected from Anton Lange, Neenah, or else face embezzlement charge along with Martin who is now under arrest. Martin states you were in with him on this collection. Lange also says you were present helping take money. Prompt settlement or warrant will be issued at once. [Signed] Reinke & Court.”

The defendant Western Union Telegraph Company received said message, transmitted it over its wires, and delivered the same to the plaintiff at Dubuque, Iowa. The complaint demands damages from both said defendants in the sum of $10,000. The question is whether the demurrer of the Western Union Telegraph Company to the complaint was properly sustained.

[1] In support of the order the respondent contends that the message is not libelous per se. The message plainly charges the plaintiff with the crime of embezzlement, and the contention that it is not libelous upon its face is purely fatuous. Further discussion of this question will not be indulged.

[2] The real question presented is whether the telegraph company is liable in damages by reason of the transmission of a libelous message over its wires. Upon this question we find very few precedents. It received consideration in Whitfield v. The South Eastern Railway Company, 96 Eng. C. L. 113; The Great Northwestern Telegraph Company v. F. X. Archambault, 30 Lower Canada Jurist 221; The Dominion Telegraph Company v. Silver, 10 Canada Supreme Court Reports, 238; Peterson v. Western Union Telegraph Co., 65 Minn. 18, 67 N. W. 646, 33 L. R. A. 302;Paton v. Great Northwestern Telegraph Co., 141 Minn. 430, 170 N. W. 511;Stockham v. Western Union Tel. Co., 10 Kan. App. 580, 63 P. 658;Nye v. Western Union Tel. Co. (C. C. A.) 104 F. 628;Western Union Telegraph Co. v. Cashman (C. C. A.) 149 F. 367, 9 L. R. A. (N. S.) 140, 9 Ann. Cas. 693.

In Whitfield v. The South Eastern Railway Company, supra, the only point urged against the liability of the telegraph company was the contention that a corporation could not be guilty of malice. The court having resolved that question in the affirmative held the company liable. In Dominion Telegraph Co. v. Silver, 10 Canada S. C. 238, it appeared that the telegraph company acted as news gatherer and collected, composed, and transmitted over its wires an item of news. In that case the telegraph company composed as well as transmitted the libelous message, and the grounds of its liability could not be confined to the mere act of transmission of a message delivered to it. In Western Union Telegraph Co. v. Cashman, 149 F. 367, 9 L. R. A. (N. S.) 140, 9 Ann. Cas. 693, it was held by the Circuit Court of Appeals for the Fifth Circuit that a telegraph company is not liable for the mere transmission of a libelous message over its wires. The other cases above cited seem to be authority for the proposition that a telegraph company is liable for the mere transmission of a libelous message over its wires.

The fact that this question has not arisen in more than a half dozen jurisdictions throughout the English speaking world indicates, first, that the security of moral character is not greatly threatened by the usual and ordinary conduct of the telegraph business, and, second, that judicial thought upon the question is but in the formative period, and that an original consideration of the subject is not wholly presumptuous.

[3][4] Malice is an essential ingredient of actionable libel. Malice may be either actual or implied. To say that a telegraph company is prompted by actual malice towards the recipient of a message transmitted over its wires in the ordinary course of business is mere fatuity. If the malice essential to support an action for libel can be found under such circumstances, it must be imputed by law. “Malice in law is such as the law infers to exist without just or lawful excuse.” Newell, Slander & Libel (4th Ed.), § 275. “If false and defamatory statements are made concerning another without sufficient cause or excuse they are legally malicious.” Id., § 277. The law will impute malice where a defamatory publication is made without sufficient cause or excuse. That the law recognizes circumstances under which malice should not be so imputed is apparent when we consider that branch of the law of libel comprehended under privileged and quasi privileged communications. The law will impute malice where necessary to protect the interest of society and the security of character and reputation. But it tolerates a balancing of considerations, the weighing of benefits to result, and, where the welfare of society is better promoted by a freedom of expression, malice will not be imputed. In such cases the communication is classified as privilege or quasiprivileged in the law. Under such circumstances the individual is required to surrender his personal rights for the benefit of the common welfare. With these principles in mind, let us consider the nature of a telegraph company and its business.

It is well settled that a telegraph company is a public service corporation. It is chartered and licensed by the government to furnish a...

To continue reading

Request your trial
21 cases
  • Denny v. Mertz
    • United States
    • Wisconsin Supreme Court
    • March 30, 1982
    ... ... State Farm Mut. Auto Ins. Co., 86 Wis.2d 1, 11, 271 N.W.2d 598 (1978) ... 30 Polzin, 54 Wis.2d at 578-579, 196 N.W.2d 685; Flynn v. Western Union Tel. Co., 199 Wis. 124, 127, 225 N.W. 742 (1929) ... 31 See, Pfister v. The Sentinel Co., 108 Wis. 572, 580-583, 84 N.W. 887 ... ...
  • Sylvester v. Armstrong
    • United States
    • Wyoming Supreme Court
    • December 5, 1938
    ... ... v. Hyman, 287 P. 78. As to the element of malice see ... Hoeppner v. Printing Company, 172 N.E. 139 and ... Flynn v. Reinke (Wis.) 225 N.W. 742. A letter is ... published as soon as posted, if it is ever opened anywhere by ... any third person. Allen v ... ...
  • Wallulis v. Dymowski
    • United States
    • Oregon Supreme Court
    • June 20, 1996
    ... ... Golden Spike Corp., 97 Nev. 24, 623 P.2d 970, 971 (1981) (same); Woods v. Helmi, 758 S.W.2d 219, 223 (Tenn.App.1988) (same); Flynn v. Reinke, 199 Wis. 124, 225 N.W. 742, 744 (1929). See also Abrahams v. Young & Rubicam, Inc., 793 F.Supp. 404, 407 (D.Conn.1992) (interpreting and ... ...
  • Dube v. Likins
    • United States
    • Arizona Court of Appeals
    • June 28, 2007
    ... ... Helmi, 758 S.W.2d 219, 223 (Tenn.Ct.App.1988); Prins v. Holland-N. Am. Mortgage Co., 107 Wash. 206, 181 P. 680, 681 (1919); see also Flynn v. Reinke, 199 Wis. 124, 225 N.W. 742, 744 (1929) (describing telegraph company's intracorporate communications as "privileged"). This rule is based ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT