Massuere v. Dickens

• Decision Date: 22 November 1887
• Citation: 35 N.W. 349,70 Wis. 83
• Parties: MASSUERE v. DICKENS.
• Court: Wisconsin Supreme Court

70 Wis. 83

35 N.W. 349

MASSUERE

v.DICKENS.

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Trempealeau county.

This is an action for damages by means of the publication of the following alleged libel:

“MASSUERE'S ‘CARD’ ANALYZED. I noticed in the Republican and Leader of November 26th a ‘card’ (?) from W. P. Massuere, referring to the recognition for the heroic services of John Kline in the late fire, in which he ungentlemanly and maliciously reflects upon the honor and manhood of myself. In self-protection I desire to state that the proximity of my buildings and lumber to the fire and other business houses, necessitated the saving of my property to protect the town. Had my buildings burned, no power at our command could have saved the entire village from destruction. One of the very first to have gone is the concern in which Mr. Massuere is interested. Hence the fight was made for very many others and not for me alone, as Mr. M. seems unprincipled enough to reflect. In regard to raising money to replace the coat said to have been lost by Mr. Kline, it appears that Mr. Kline went to Mr. Massuere to purchase a coat immediately after the fire; no coat could be found suitable in his stock, and they together went over to Bohrie Bros. & Maurer's, where one was obtained. The presentation of the coat to Mr. Kline, gratis, was only a just recognition of his services, and creditable to the gentlemen who contributed. But the solicitation was done by some one, probably by Massuere, very silently. He never solicited from me nor even mentioned the subject to me in any way, hence I had no chance to contribute to that particular fund. But I feel confident that upon a comparison of time it will be found that I had handed to Mr. Kline a money consideration, before a cent was subscribed by any man for the coat, and I think a sum very nearly the value of the coat; hence not wholly devoid of appreciation for valiant services. This much to the public in defense of my honor, and I know 'tis sufficient to the fair-minded, certainly to those who may know the situation. Now to Mr. Massuere, I desire to frankly say your stab is unprovoked and unmerited. I resent it as an act on your part devoid of principle, honor, and manhood. In no respect do I stand in your shadow, or that of any other man in this community in response to merited charity or public enterprise. Considering your low, mean, dirty, uncalled-for thrust, you must lose all self-respect, and I denounce you as only fit to be classed with that repulsive order of creation, the Mephitis Americana. If your ignorance is as limited as your sense of manhood, honor, and decency appears to be, you will be unable to comprehend the appellation applied to you, and to save you the further humiliation of seeking light from your neighbors, I will translate for your benefit: SKUNK,--a thing as repulsive to the finer sensibilities of man as your low insinuations and business practices are to your fellow-townsmen.

+-------------------------+
                ¦[Signed]¦R. L. DICKENS.” ¦
                +-------------------------+
                

The card therein referred to is as follows:

“A CARD. Mr. J. Kline, of Waumandee, happened to be in town at the time of the fire, and took hold like a good fellow, and during the time lost his coat. He stood in the intense heat, and through his help with others, saved the hardware store of R. L. Dickens. Through the contributions of Proctor Bros., John Maurer, Emil Maurer, Dr. G. N. Hidershide, John Dressesdorfer, Peterson, Massuere & Co., Tim Selk, and J. M. Fertig, a coat was bought and thanks returned to John for his help.

+--------------------------+
                ¦[Signed]¦W. P. MASSUERE.” ¦
                +--------------------------+
                

The answer consists, in effect, of denials, admissions, and matters in mitigation of damages. On the trial the jury returned a verdict in favor of the plaintiff for $1,000. Thereupon, the defendant moved upon the minutes of the court to set aside the verdict, and for a new trial. On the plaintiff's filing a remission of $500 from the verdict, the court overruled said motion. Thereupon judgment was entered in favor of the plaintiff for damages, costs, and disbursements, amounting in all to $567.29, from which the defendant brings this appeal.

E. V. Nye, for respondent.

H. M. Lewis, S. Richmond, and Thomas Simpson, for appellant.

CASSODAY, J.

1. This action is for damages by reason of publishing the plaintiff as a “skunk,” with accompanying epithets. We think the article published by the defendant must be regarded as libelous per se, within the repeated decisions of this court, even when construed in connection with the card mentioned in it. It is unnecessary to restate the rule as to what constitutes such libel.

2. There was no error in excluding the conversation of the plaintiff with the witness Hensel, when he asked him to subscribe for the fund to buy the coat mentioned in the two publications. It is said to have been offered for the purpose of showing the spirit in which the plaintiff inaugurated the attack upon the defendant, which appeared in the card. The plaintiff's publication of the card, however, cannot, as we think, be regarded as a justification of the libel. It was, however, proper to be regarded in mitigation of damages, as it tended to provoke a reply. But what the plaintiff said to Hensel could have no such tendency, for it does not appear that, at the time of publishing the libel, the defendant knew or had any information of such conversation; and neither publication refers to it. Certainly the card cannot be regarded as libelous per se. The question here is not whether the plaintiff was moved to publish the card by actual malice, but how far it should go in mitigation of damages.

3. The defendant was allowed to prove the plaintiff's “reputation as to his business practices,” in order to meet what was said about “business practices” in the libel. But error is assigned because the court did not also allow the...