Allen v. News Pub. Co.

Citation50 N.W. 1093,81 Wis. 120
PartiesALLEN v. NEWS PUB. CO.
Decision Date12 January 1892
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from superior court, Milwaukee county; FRANKLIN D. GILSON, Judge.

Action by Christine Allen against the News Publishing Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by LYON, J.:

Action to recover damages for an alleged libel. At the time the publication complained of was made, the defendant was a corporation, and the proprietor and publisher, in the city of Milwaukee, of a newspaper called the “Daily Review.” In the issue of such newspaper of February 18, 1889, the defendant published an article headed, “Was he man or woman?” in which it was stated that one W. J. Allen was found dead in his bed on the preceding morning, and that, on a post mortem examination by two physicians, it was found that he “possessed both male and female organs in a remarkable state of development.” On the following day the plaintiff, who is the widow of the deceased, Allen, went to the office of the defendant, and demanded of some officer or employe of the defendant a retraction of the above statement, which she pronounced a falsehood, and a slander upon her deceased husband. On February 20th defendant published in the Review another article, under the following headings: He was a man. At least his wife says he was. Doctors are doubtful.” It is stated in the article that plaintiff called at the Review office the day before to protest against the scandalous publication of the 18th about her husband, and especially the heading, “Was he man or woman?” It is further stated in such article that plaintiff there said “she had not the least doubt--that there was not the least question--that her late husband was a perfectly formed man, with all masculine powers. The article contains no retraction of the objectionable statements in the publication of February 18th. The libel alleged in the complaint is the publication of February 20, 1889, although the publication of the 18th is set out as explanatory thereof. The answer is, in substance, that both publications are true; that the first was merely a recital of what actually occurred, and of disclosures made at an inquest on the body of Allen; and that the article of the 20th, except the headings thereto, was published at the request of the plaintiff, and accords with her statements made at the office of the Daily Review during the above-mentioned interview. A general demurrer to the complaint was interposed and overruled. On the trial the court overruled a demurrer, ore tenus, to the complaint, a motion for a nonsuit made at the close of plaintiff's testimony, and a motion to direct the jury to find for the defendant, made after the testimony was all in. The court held that the article of February 20th was libelous on its face, in that it tended to expose the plaintiff to public contempt and ridicule, and submitted to the jury to find whether plaintiff requested defendant to publish the article, with the instruction that if she did so she could not recover. The jury were also instructed that if they found for the plaintiff, and also found that the publication was prompted by actual malice on the part of the defendant, or if the defendant ratified or confirmed the malicious acts (if any) of its agents in the matter of the publication, they were at liberty to award exemplary or punitory damages, the nature and office of which, as well as of compensatory damages, were correctly stated to the jury. The court directed the jury, if they found for plaintiff and awarded her exemplary damages, to find the amount thereof separately. The jury returned a verdict for the plaintiff, and assessed $150 compensatory, and $100 exemplary, damages. A motion for a new trial was denied, and judgment entered pursuant to the verdict for the whole amount of damages thus assessed, ($250,) and for costs. The defendant appeals from the judgment.

M. N. Lando, ( D. S. Rose, of counsel,) for appellant.

C. S. Carter, for respondent.

LYON, J., ( after stating the facts.)

I. The trial court held that the article of February 20th is libelous on its...

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7 cases
  • Lauder v. Jones
    • United States
    • North Dakota Supreme Court
    • 24 Febrero 1904
    ... ... Shinglemeyer v ... Wright, 50 L. R. A. 129; Throckmorton v. Evening Post ... Pub. Co., 35 A.D. 396 ...          The ... affidavit filed in the Supreme Court by the ... falsity. 18 Am. & Eng. Enc. Law (2d Ed.) 1049; Atwater v ... Morning News Co., 34 A. 865; Newell on Slander and ... Libel, 325; Billet v. Times Dem. Pub. Co., 50 L. R. A ... Shippman, 86 ... N.W. 431; Schenk v. Schenk, 20 N. J. Laws, 208; ... Dixon v. Allen, 11 P. 179; Bettner v. Holt, ... 11 P. 713; Lansing v. Carpenter et al., 9 Wis. 540; ... ...
  • Morse v. Times-Republican Printing Co.
    • United States
    • Iowa Supreme Court
    • 23 Septiembre 1904
    ...v. News, 94 Mich. 114, 53 N. W. 952;Halley v. Gregg, 74 Iowa, 565, 38 N. W. 416;Moley v. Barager, 77 Wis. 43, 45 N. W. 1082;Allen v. News, 81 Wis. 120, 50 N. W. 1093;Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111;Holston v. Boyle, 46 Minn. 432, 49 N. W. 203;Peterson v. Tel. Co., 65 Minn. 18,......
  • Morse v. Times-Republican Printing Co.
    • United States
    • Iowa Supreme Court
    • 23 Septiembre 1904
    ... ... it had the right to publish the matter complained of as an ... item of news, with fair and reasonable comment for the ... information of the readers of the newspaper; that ... Press v. McDonald, 63 F. 238 ... (11 C.C.A. 155, 26 L.R.A. 531); Post Pub. Co. v ... Hallam, 8 C.C.A. 201 (59 F. 530); Iron Age Pub. Co ... v. Crudup, 85 Ala. 519 (5 ... Gregg, 74 Iowa 563, 38 N.W. 416; Moley v ... Barager, 77 Wis. 43 (45 N.W. 1082); Allen v ... News, 81 Wis. 120 (50 N.W. 1093); Buckstaff v ... Viall, 84 Wis. 129 (54 N.W. 111); ... ...
  • Pfister v. Milwaukee Free Press Co.
    • United States
    • Wisconsin Supreme Court
    • 3 Junio 1909
    ...Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760. The only case we are aware of that even suggests a contrary rule is Allen v. News Pub. Co., 81 Wis. 120, 50 N. W. 1093. The correctness of the instruction as a proposition of law depends upon whether the same rule should be applied, where the ma......
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