Candrian v. Miller

• Decision Date: 11 January 1898
• Citation: 98 Wis. 164,73 N.W. 1004
• Parties: CANDRIAN v. MILLER.
• Court: Wisconsin Supreme Court

98 Wis. 164

73 N.W. 1004

CANDRIAN

v.MILLER.

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Adolf Candrian against James G. Miller for damages for libel.Verdict for plaintiff of one dollar, from which plaintiff appeals.Reversed.Winter, Esch & Winter and Higbee & Bunge, for appellant.

Fruit & Brindley and C. L. Hood, for respondent.

CASSODAY, C. J.

This action was commenced June 3, 1896, to recover damages sustained by reason of a libel published by the defendant of and concerning the plaintiff, May 28, 1896.The libel was in the form of an open letter, and, among other things, with appropriate innuendoes and in effect, referred to the plaintiff as being eloquent in calumnies, outrageously malicious allusions, lying and quarreling with acquaintances and neighbors, but equally as “cod-fish mute” when called upon for an answer, explanation, or the truth, quarreling in guttersnipe fashion, and as incapable of thinking at all; that he appears in a very dim, nay perhaps even dirty, light; that he was tricky and stupid; that he was a noble swindling knight,--smooth swindler; that people despise and avoid him; that, even as a newspaper man, he was only an exceedingly wretched example; narrow of intellect, intolerant, and full of spite and prejudices; that he garbles and compiles from other papers whatever is to his liking, and then parades the same before the world as if they were his own intellectual productions, and without giving exchanges credit therefor; that he was a stupid blockhead,--a base dunce and dude; that he had the hide of a rhinoceros, and ought to be whipped with a rhinoceros whip into decency and good manners, and thus drive the fop, dude, and dancing booby out of him; that he was possessed of indescribable vanity; that even his personal appearance carries the irresistible impression of the coxcomb, the dude, the fop; that whoever had business dealing with him discovered only too soon that he was an insipid, superficial individual, whose business methods appear here and there unclean; that such screech owls as he had been characterized as “scabby carrion”; that his idiocy and assumed grandeur and vanity together go to make a fool and eccentric fop of him; that he discloses himself as a positively contemptible slack-tail, full of blemishes, fleas, spots, and tatters.The letter closes with a promise to write two other letters, and with these words: “I am your well-equipped adversary, James G. Miller, Attorney.”The letter is, in part, an answer to an alleged libelous article published by the plaintiff of and concerning the defendant, May 14, 1896.The amended answer of the defendant concedes the publication, and consists of admissions and denials, and sets forth the libelous article so published by the plaintiff, May 14, 1896, and certain prior transactions of the plaintiff, and pleads the matters aforesaid in mitigation of damages, as well as in justification and in defense of the action.At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at one dollar.From the judgment entered thereon the plaintiff brings this appeal.

Several phases of the article complained of were certainly libelous per se.Bradley v. Cramer, 59 Wis. 311, 18 N. W. 268;Smith v. Utley, 92 Wis. 136, 65 N. W. 744.This being so, the falsity of such portions of the article were presumed, and the malicious intent to injure the plaintiff implied from the mere publication.In such a case, general damages will be presumed from such publication.Odgers, Sland. &L. 291;Barr v. Moore, 87 Pa. St. 385;Neeb v. Hope, 111 Pa. St. 145, 2 Atl. 568.Such being the nature of the cause of action alleged, we perceive no error in allowing the defendant to answer both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of damages, especially the letter of May 14, 1896.Rev. St. § 2678.

2.Error is assigned because the court refused to instruct the jury to the effect that the plaintiff was entitled to recover substantial damages; that any sum less than $50 would not be substantial damages, because it would not have the effect to carry costs.The giving of costs is a matter regulated by statute.They are a mere incident to the action.The effect of the statutes allowing or disallowing costs is not for the consideration of the jury.The amount of damages in such a case is peculiarly for the jury, and they have a broad discretion on the subject.The right of the court, in exercise of a sound discretion, to set aside a verdict, as being too large or too small, does not make it proper for the court to dictate the amount of the verdict.There was no error in refusing to charge as requested.

3.Notwithstanding the malice of the defendant was implied by law from the mere publication of the open letter complained of, yet the plaintiff put in evidence three or four other letters, written and caused to be published by the defendant, for the avowed purpose of proving express malice, so as to aggravate and enhance the damages recoverable.Just before resting his case the plaintiff's counsel stated that “I desire the record to show that we make no claim to punitory damages”; and then immediately put in evidence a letter written by the defendant 12 days prior to the libelous article in question, to the effect that a failure to reply, as requested, would “not remain without consequence.”Subsequently the plaintiff objected to evidence of matters in mitigation of damages, on the ground that no punitory damages were claimed; but as the plaintiff's evidence of malice had not been withdrawn from the case, and as it was impossible to know at that stage of the trial what the charge of the court on the subject would be, we cannot say that the admission of such evidence was error.

4.As indicated, the article complained of contained several expressions each of which was libelous per se.This being so, each of such expressions was, in legal effect, a separate cause of action.As to some of such expressions there does not appear to be any justification in the record.This seems to be conceded in the charge.The court was requested by the plaintiff to instruct the jury, among other things, that, “regardless of the question as to whether you believe that the defendant has proven the truth of the charge that the plaintiff was unclean or dishonest in his business methods, you must find for the plaintiff on the other libelous charges in this article, and give to the plaintiff, as damages, such sum as you believe will reasonably compensate him for the injury which he has sustained, and this without regard to the motives which actuated the defendant in writing and publishing the same.”The instruction was refused, and the plaintiff excepted.Counsel for the defendant say that the instruction so requested was substantially given in the general charge.On the contrary, after charging the jury that they were “only to consider the actual damages the plaintiff had sustained, if any,” and defining such damages, the court charged the jury, substantially, as follows: “In determining the actual or compensatory damages, if you find the plaintiff has sustained such damages, you have a right to consider the truth of any of the matters charged as defamatory and any circumstances that go to reduce the extent of his injury; that is to say, * * * the plaintiff's character with reference to any of the alleged defamatory charges, * * * the article of May 14, 1896, * * * and * * * the circumstance under which the defendant's attention was called to that article, * * * and the condition of mind the defendant was in when he wrote the * * * article of May 28, 1896;” that they ought to consider all of such circumstances in arriving at or helping them to fix the actual damages which the plaintiff had sustained, if any.The statute cited provides that “the defendant may in his answer allege both the truth of the matter charged as defamatory,...