Buckstaff v. Viall

• Decision Date: 10 January 1893
• Citation: Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111 (Wis. 1893)
• Parties: BUCKSTAFF v. VIALL.
• Court: Wisconsin Supreme Court

84 Wis. 129

54 N.W. 111

BUCKSTAFF

v.VIALL.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by George H. Buckstaff against E. W. Viall for libel. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.F. C. Stewart and Chas. W. Felker, for appellant.

F. W. Houghton and Gabe Bouck, for respondent.

ORTON, J.

The demurrer to the second count of the complaint, on the ground that it did not state a cause of action, was overruled, and the defendant has appealed from said order. The action is for libel. The complaint substantially sets forth the following libelous matter: The plaintiff was a resident of the city of Oshkosh, Winnebago county, in this state, and a state senator of the nineteenth senatorial district, comprising a large portion of said county, at the date hereinafter stated. The defendant was at the same time doing business in said city as a publisher, under the name of E. W. Viall & Co., and the sole owner and publisher of the Oshkosh Times, a daily newspaper of wide circulation, and published in said city. The defendant, on the 19th day of March, 1889, maliciously published in said newspaper an editorial article containing the following false and defamatory matter concerning the plaintiff, to wit: “A Prayer to Bucksniff, [meaning the plaintiff.] It hath ever been the custom, from time immemorial, to appease the wrath or obtain the favor of the gods through the medium of prayer. Oshkosh is now in a situation where a resort to this means of grace is advisable. Through her representatives in council, she has asked the passage of certain amendments of her charter. These can be obtained through divine favor of Senator Bucksniff, [meaning the plaintiff,] the legislative god of Winnebago county. His majesty, Bucksniff, [meaning the plaintiff,] under the pretense of consulting some of his friends, who are a number of well-known little political gods of Oshkosh, intends to defeat these amendments by procrastination and delay until it is too late for their adoption by the legislature in time for the spring election. As the means of obtaining the favor of this wonderful legislative god, his majesty, Bucksniff, [meaning the plaintiff,] the Times recommends that the citizens of Oshkosh offer up to him the following prayer: ‘We are sensible, O, dearlybeloved Bucksniff, [[[meaning the plaintiff,] of thy great wisdom and power, and humbly beseech thee that thou wilt favor us with certain amendments to our city charter. Know thou, O, divine senator, [meaning the plaintiff,] compared with whom all other senators are merely ciphers who draw per diem and mileage from the state, [[[meaning the opposite,] wilt thou make and ordain certain great and wise laws,’ etc. ‘Know, thou, also, mighty, eloquent, and beautiful senatorial god,’ etc., [[meaning this plaintiff, and intending, by irony and sarcasm in the words used, to sneer at and ridicule the deformity of the plaintiff, caused by a partial paralysis on one side of his face and body.] ‘While it is within thy mighty power to defeat the will of the people of Oshkosh, forget, O, mighty being, [[meaning the plaintiff,] the advice of thy friends, the little republican ward gods, and look with thy mighty right eye alone,’ etc., [meaning the plaintiff, and again, in an ironical sense, alluding to the partial paralysis of this plaintiff.] ‘And, in conclusion, thou divine South Side dictator, [meaning the plaintiff,] we implore that thou wilt reconsider thy determination to defeat the laws,’ etc. * * * There will be one chance in fifty, at least, of his Third ward omnipotence [meaning the plaintiff] surrendering his own wishes, and following those of the people.” This publication greatly injured the plaintiff in his office as senator, and in his reputation, and brought him into public ridicule and contempt. The plaintiff demands $30,000 and costs. The words more especially libelous are: “Prayer to Bucksniff;” “Divine favor of Senator Bucksniff;” “The legislative god of Winnebago county;” “His majesty, Bucksniff;” “We are sensible, O, dearly-beloved Bucksniff, of thy great wisdom and power, and humbly beseech thee;” “Know thou, O, divine senator, compared with whom all other senators are merely ciphers;” “Know thou, also, mighty, eloquent, and beautiful senatorial god;” “Forget, O, mighty being, the advice of thy friends, the little republican ward gods, and look with thy mighty right eye alone to the good of the city;” “Thou divine South Side dictator, we implore,” etc.; “Third ward omnipotence.”

The grounds of the demurrer are: (1) That the article is not libelous; (2) that it is privileged; (3) that the innuendoes cannot make the matter libelous which is otherwise not so. The complaint charges that the defendant published the article maliciously, and of and concerning the plaintiff. It begins in the form and heading of a prayer to Bucksniff, (meaning the plaintiff.)

1. The name itself is libelous. It is a nickname which is a name of reproach, and an opprobrious appellation, and is in the similitude of “Pecksniff,” one of the familiar and most contemptible characters in Dickens, and...