Lehner v. Press

Decision Date01 May 1934
Citation254 N.W. 664,215 Wis. 254
PartiesLEHNER v. ASSOCIATED PRESS ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Affirmed.

Action for libel by Philip Lehner against the Associated Press and another, commenced July 27, 1932. From a judgment of nonsuit entered December 13, 1933, the plaintiff appeals.

The complaint alleges that the defendants maliciously distributed to various newspapers in the state for publication therein the following false and defamatory article concerning the plaintiff:

“Circuit Judge C. M. Davison, Dodge county, was justified in setting aside a divorce decree which had been awarded Ewalt H. Kelm, Princeton, the state supreme court ruled today.

The decree was set aside after Vivian Whitney Kelm, the defendant, swore to an affidavit charging Philip Lehner, Princeton attorney, and K. J. Callahan, Montello attorney, had induced her to sign certain documents ‘through misrepresentation and fraud.’

Mrs. Kelm, according to her counsel, was called to Attorney Lehner's office where she was informed of the divorce proceedings being taken by her husband. Attorney Lehner said, in an affidavit, that she had suggested that he recommend a lawyer as her counsel and that accordingly he brought Callahan into the case.

Mrs. Kelm's affidavit said Lehner, who was acting as counsel for Mrs. Kelm, (Mr. Kelm) called Attorney Callahan without her knowledge and permission and that both induced her to sign documents, the contents of which were unknown to her.

In the appeal to the supreme court, Mrs. Kelm's present counsel charged that Lehner took undue advantage of the ignorance of this defendant in regard to legal procedure and thus fraudulently while representing the plaintiff, secured her signature to documents.”

Upon the trial herein the evidence showed without dispute that the defendant the Associated Press is comprised of the publishersof newspapers organized as a corporation under the Membership Corporations Law of the State of New York (Consol. Laws N. Y. c. 35) for the purpose of gathering and distributing news by and among its members. It has thirty-one members in the state of Wisconsin. The defendant E. L. Almen was in the employ of the defendant corporation at Madison. Among his duties was the preparation of articles respecting the decisions of the Supreme Court of the state. Shortly before March 10, 1931, he prepared several articles respecting cases in which it was expected the court would hand down opinions on that day. The articles were prepared from the printed cases and briefs on file in the office of the clerk of court. Among them was a story respecting the Kelm divorce case in which the plaintiff herein was the attorney for Mrs. Kelm. This case was before the Supreme Court (204 Wis. 301, 235 N. W. 787) upon an appeal from an order of Circuit Judge Davison vacating a judgment theretofore rendered therein. The story respecting this case as written by Almen was as above quoted, except that instead of the words “was justified,” the article used the optional words “was--was not” in connection with the word “justified,” with intention that the words “was justified” would be used in publishing the story if the order appealed from was affirmed and the words “was not justified” would be used if it was reversed. This article was with the other stories sent out prior to March 10 to the thirty-one Wisconsin members of the defendant corporation, subject to future release according to regular procedure. On the day decisions were handed down, Almen instructed the members of the defendant corporation by telegram which of the optional words should be left in the stories previously sent out when published. The court did not announce a decision in the Kelm Case on March 10. The telegram sent to the members of the defendant corporation on that day did not mention that case, and directed that the story previously sent be withheld in the cases not mentioned. The decision in the Kelm Case was handed down on April 7. The order appealed from therein was neither affirmed nor reversed, but the appeal was dismissed. The telegram sent by the defendant to its members on that day gave lists of the cases decided under the headings “Affirmed” and “Reversed.” It listed the Kelm Case under the heading “Appeal Dismissed.” It also particularly instructed respecting the story in each case referred to in the telegram which optional words of the story previously sent should be retained in publishing the story. The Kelm Case was not referred to in these instructions. In the April 7 issue of the Oshkosh Northwestern, a member of the defendant corporation, the story in the Kelm Case prepared by Mr. Almen was published, using the optional word “was,” thus stating that the order of Judge Davison “was justified.” The Fond du Lac Reporter, also a member of the defendant corporation, on April 10, published a rewrite of the article of Almen, changing the wording but giving its substance. At the close of the testimony the defendants moved for a nonsuit. The motion was granted and judgment of dismissal was entered.

FRITZ, J., dissenting.

Lehner & Lehner, of Princeton, and Hill, Beckwith & Harrington, of Madison, for appellant.

Sanborn, Blake & Aberg, Glen H. Bell, Charles A. Winding, and Philip G. Sanborn, all of Madison, for respondents.

FOWLER, Justice.

[1] The article complained of is substantially the same as that involved in Lehner v. Berlin Publishing Co., 211 Wis. 119, 246 N. W. 579, and was there held not to be a true report of a court proceeding, and therefore not privileged and libelous per se. The publication of it in a newspaper would therefore render the publisher liable in an action based thereon, unless it were proved in defense that the defamatory matter was true. No proof of its truth appears in the evidence herein. The publication of the article in the Oshkosh Northwestern and other newspapers would render the defendants herein liable, if such publication was made at their direction or by their procurement. However, if the article was published without authorization by the defendants, they are not liable for any such publication. De Sénancour v. Société La Prévoyance, 146 Mass. 616, 16 N. E. 553;Montgomery v. Knox, 23 Fla. 595, 3 So. 311.

[2] The defendants claim that publication in the newspapers of the members of the corporation was not directed or authorized by them, because they never released the article for publication. We discover no evidence of such release. There was an express direction on March 10 to withhold publication. There was no authorization of publication thereafter. The original instructions were, in effect, that the article might be published if the Kelm Case were affirmed or reversed, using the word “was” in event of affirmance and the words “was not” in event of reversal. Dismissal of an appeal is neither an affirmance nor reversal. Therefore there was never any authorization by the defendants of publication of the article.

It is urged that whether the publication of the article under the facts existing was authorized by the defendants was for the jury to determine. But the facts respecting the matter are without dispute and permit of only one factual inference. In this situation the inference to be drawn from them is one of law.

[3][4] It is contended by the appellants that the sending of the article by the defendants to the members of the defendant corporation was itself an actionable publication, just as the sending of a defamatory letter to persons other than the one to whom it refers is such a publication as renders the sender liable in an action for libel. The defendants submit as meeting this contention that the sending of the article is conditionally privileged and not actionable except on proof of malice, and that the evidence herein contains nothing to warrant an inference of malice. We are unable to discover anything in the evidence that would justify an inference of malice on the part of the defendant Almen. Almen alone acted for the defendant corporation in preparing and transmitting the article upon which the suit is based, and as there is no evidence of malice as to him there is none as to the defendant corporation.

We are of opinion also that the contention of the defendants that the article is conditionally privileged is sustained both upon authority and principle. Authorities bearing upon the point are collected and discussed in notes in 5 A. L. R. 455 and 18 A. L. R. 776. The rule is stated in 26 L. R. A. (N. S.) 1081 as follows: “It is the general rule that where two persons have a common interest, every communication made by one to the other in an honest attempt to protect such common interest is privileged, in the absence of malice. This rule would seem to have especial force when applied to members of a corporation or of an association, where the parties may have a legal, as well as a personal responsibility, the one to the other; and such communications if bona fide and without malice may reflect upon other members, or upon the officers or employees of the corporation or association, or even upon third persons with whom it may have dealings. The cases are very harmonious in observing and following the rule, so far as corporations are concerned.”

The question has many times arisen in cases involving insurance and railroad corporations, wherein communications have been sent between corporations and between officers or agents of corporations, defamatory in their nature, aiming at investigation of the conduct or the discharge of persons in the company's service. In 36 Corpus Juris, 1225, it is stated that: “A corporation is an entity so that its acts through its members as a corporate body, or through its officers or agents, are regarded as the acts of the legal entity or artificial person as distinguished from the members who compose it, or the officers or agents through whom it...

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    ... ... Reinke, 199 Wis. 124, 225 N.W. 742, 63 A. L. R. 1113, ... 1118; Magnolia Petroleum Co. v. Davidson, (Okla ... Sup.) 148 P.2d 468; Lehner v. Associated Press, ... 215 Wis. 254, 254 N.W. 664; 33 Am. Jur., p. 111, Sec. 108; 36 ... C. J., p. 1225, Sec. 174; Laun v. Union Electric Co. of ... ...
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