Bussewitz v. Wis. Teachers' Ass'n

• Decision Date: 17 November 1925
• Citation: 188 Wis. 121,205 N.W. 808
• Parties: BUSSEWITZ v. WISCONSIN TEACHERS' ASS'N ET AL.
• Court: Wisconsin Supreme Court

188 Wis. 121

205 N.W. 808

BUSSEWITZ

v.WISCONSIN TEACHERS' ASS'N ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1925.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action by M. A. Bussewitz against the Wisconsin Teachers' Association and another. From an order sustaining demurrers to complaint, plaintiff appeals. Affirmed, and cause remanded.Albert M. Kelly, of Milwaukee (William H. Bennett, of Milwaukee, of counsel), for appellant.

Hannan, Johnson & Goldschmidt, of Milwaukee, Theodore W. Brazeau, of Wisconsin Rapids, and Whaley, Erikson & Paulsen, of Racine, for respondents.

JONES, J.

This is an appeal by the plaintiff from an order of the circuit court for Milwaukee county sustaining the demurrers of the defendants to the plaintiff's complaint. The plaintiff alleged that he was engaged in educational work, was a member of the faculty of the Milwaukee State Normal School, and engaged in lecturing; that the Wisconsin Teachers' Association is a Wisconsin corporation, and that the defendant Doudna has been its secretary and employee; that the plaintiff commenced an action in the circuit court for Milwaukee county against the Wisconsin Teachers' Association to recover compensation for services rendered by him to it, and to be reimbursed for money paid by him in its behalf; that said association filed an answer and counterclaim, verified by E. G. Doudna, which was published in the daily newspapers of the city of Milwaukee, that in one of the paragraphs of said answer and counterclaim the defendants maliciously stated and published, concerning the plaintiff, the following false and defamatory matter, to wit:

“That during said calendar year of 1919, as this defendant is informed and verily believes, said plaintiff unlawfully and feloniously, and without authority from said defendant, converted to his own use from the funds of said defendant corporation, the sum of fifty dollars ($50); that said plaintiff, as this defendant is informed and verily believes, refused to return or surrender the said sum of fifty dollars ($50) or any part thereof, and still refuses and neglects so to do, and has converted and disposed of the same to his own use, to plaintiff's damage in the sum of fifty dollars ($50) and interest thereon at the rate of 6 per cent. per annum from the date of such unlawful conversion.”

It was alleged that these statements were false, and published wantonly and maliciously to injure the plaintiff in his business and profession, and that he had suffered damages in the amount of $25,000. Four causes of action were pleaded in the same complaint in which substantially the same language was used, but related to alleged conversions in several different years of different amounts, and judgment was demanded in the sum of $100,000. Separate demurrers were filed to each of the alleged causes of action.

It is the claim of counsel for the plaintiff that the word “feloniously,” used in the counterclaim, was not relevant, pertinent, or material to the issue involved; that the only relief asked for in the pleading is judgment for the amounts alleged to have been converted; that the counterclaim charged the commission of a crime, and that such a charge in no way enhanced the damages which might be recovered. It is argued that the fact that the language was used in judicial proceedings affords no defense, since at most it was only conditionally privileged, and is actionable if malice is shown, which is admitted by the demurrer. It is conceded by counsel for the defendants that malice destroys conditional privilege, even in judicial proceedings, but it is argued that the allegations complained of in this case were relevant and material, and, having been made in the course of judicial proceedings, were absolutely privileged, even though made maliciously and falsely. It is further argued at length that, in considering this question, and in determining whether the language used in a pleading is relevant or pertinent, a liberal rule is to be adopted, and the usual tests as to relevancy should not be applied.

It is generally accepted, as the English rule, that the privilege as to defamatory statements in pleadings is absolute, whether relevant and pertinent to the case or not, and that the same rule applies to counsel, parties, and witnesses. The following language was used in a leading case:

“For the purposes of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously; that is to say, not with the object of doing something useful towards the defense of his client; I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill will or anger towards the prosecutor arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered; nevertheless, inasmuch as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been.” Munster v. Lamb, 11 Q. B. D. 588.

In Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505, there is an interesting and careful analysis of the English decisions on this subject, and doubt is suggested whether the rule, so broadly stated, was supported by the decisions in that country.

[1] Whatever may be the English rule, it is generally held in this country that parties, counsel, and witnesses are not in all cases absolutely exempted from liability for the use of defamatory words published or spoken in the course of judicial proceedings, but that such exemption only exists where the statements are pertinent and relevant to the issues. Jennings v. Paine, 4 Wis. 358;Schultz v. Straus, 127 Wis. 325, 106 N. W. 1066, 7 Ann. Cas. 528;Keeley v. Great Northern Ry. Co., 156 Wis. 181, 145 N. W. 664, L. R. A. 1915C, 986. See collection of cases in the following notes: 16 A. L. R. 746;12 Ann. Cas. 1027;22 L. R. A. 650. These notes contain many illustrations of oral and written statements which were held relevant and pertinent and the reverse. The words “relevant” and “pertinent” are those most frequently used in the decisions on this subject. But in other decisions such language is used as “pertinent and applicable,” or “pertinent and material,” or “pertinent and relative to.” Hoar v. Wood, 3 Metc. (Mass.) 193;Schultz v. Straus, 127 Wis. 325, 106 N. W. 1066, 7 Ann. Cas. 528;Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505; 17 R. C. L. 336.

[2][3] The question of relevancy in these inquiries is for the determination of the court, and not for the jury. In considering whether allegations in a pleading are pertinent or relevant, it does not follow that the same tests are to be applied as on motions to strike out averments as irrelevant. Although most of the American courts do not follow the English rule, there seems good reason for a liberal interpretation of pleadings in actions of this kind when the question of relevancy is involved; and such a course is based on good authority. In...