D'Amato v. Freeman Printing Co.

• Decision Date: 09 April 1968
• Citation: 38 Wis.2d 589,157 N.W.2d 686
• Parties: James D'AMATO, Respondent, v. FREEMAN PRINTING COMPANY, a Wisconsin corporation, Henry A. Youmans, Jr., and Gilbert H. Koenig, Appellants, Freeman Reader, alias, and Disqusted Taxpayer, alias, Defendants.
• Court: Wisconsin Supreme Court

Page 686

157 N.W.2d 686

38 Wis.2d 589

James D'AMATO, Respondent, v. FREEMAN PRINTING COMPANY, a Wisconsin corporation, Henry A Youmans, Jr., and Gilbert H. Koenig, Appellants Freeman Reader, alias, and Disqusted Taxpayer, alias, Defendants.

Supreme Court of Wisconsin.

April 9, 1968.

Lowry, Hunter & Tikalsky, Waukesha, for appellants.

Roland J. Steinle, Jr., Milwaukee, Gregory Gramling, Jr., Milwaukee, of counsel, for respondent.

ROBERT W. HANSEN, Justice:

In his memorandum decision, the trial court found that the alleged libelous comment '* * * relates to several newspaper items * * *' and is '* * * not therefore limited to a single publication but extends over a number of different publications and a period of several weeks in time.' Of the demurrer by defendants he found 'Defendants have demurred to the amended complaint, which alleges 17 separate causes of action for libel by newspaper, claiming that said amended complaint fails to state facts sufficient to constitute a cause of action.' He overruled the demurrer, stating '* * * it is the opinion of the court that the pleadings do state one or more causes of action and that the demurrer should be overruled.'

The first question before us is whether the trial court exceeded its authority in treating the demurrer as made to an amended complaint, presenting one or more causes of action. An affirmative answer would require reversal and remading to the trial court with directions to rule on each of seventeen demurrers challenging each of seventeen causes of action, each related to an article or part of an article from the series of campaign time articles complained of.

For the purpose of ruling on the demurrer, the trial court treated the amended complaint as a unit. It did not rule individually on seventeen causes of action. It concluded only that there were one or more causes of action beyond the reach of demurrer. The trial court may have been propelled toward the unitary approach by the fact that each cause contains in substance the following allegation '* * * that the said statement and the article in its entirety, were part and parcel of a continuing cause of defamatory attack on the reputation of the plaintiff, which attack was extended over a period of time.'

In a somewhat different context, this court has defined a cause of action as '* * * a grouping of facts falling into a single unit or occurrence as a lay person would view them.' ¹ In a more analogous situation, this court has said 'The complaint may be regarded as though the pleader had in form at least attempted to state but one cause of action. * * * We are not bound by the form of a pleading, but may consider the substance of the allegations thereof for the purpose of determining whether more than one cause of action is alleged therein.' ² On demurrer the trial court considered the substance of the allegations for the purpose of determining whether one or more than one cause of action is alleged therein, and we hold that it had the discretionary right so to do. In appellant's brief, the seventeen causes are referred to as 'Count I,' 'Count II,' 'Count III,' etc. That is how the trial court treated them in the hearing on demurrer. We will review the trial court order on the basis on which it is made.

In his decision, the trial court stated 'In ruling on the demurrer the court is obliged to assume that all factual statements published by defendants and pleaded by plaintiff were falsely and maliciously made. The plaintiff * * * alleges that the objectionable statements were untrue or false. Malice must also be presumed by the court * * *' On demurrer, pleadings must be construed liberally. This court must, as the trial court did, give the complaint a liberal construction in favor of stating a cause of action, with every reasonable intendment and presumption to be made in favor of the complaint and with the plaintiff to be entitled to all reasonable inferences which can be drawn from the facts pleaded. ³ Demurrer concedes the truth of all material allegations of fact, challenges only the conclusions of law. The trial court found that, 'The amended complaint further alleges * * * that the defendants maliciously and with intent to defame and injure plaintiff in his reputation published various false and defamatory statements, duly enumerated, which they refused to correct.' ⁴ We concur, finding that both malice and untruthfulness are sufficiently alleged.

Compelled on demurrer to assume that the defendants made the statements falsely and maliciously, the trial court had then to rule on whether the articles published by defendants about plaintiff could be found to convey a defamatory meaning. If so, the demurrer had to be overruled. The trial court so found, stating 'Without attempting to enumerate all statements or circumstances alleged in the amended complaint sufficient to convey a defamatory meaning, it is the opinion of the court that the pleadings do state one or more causes of action and that the demurrer should be overruled.'

The trial court further stated 'For instance, on demurrer the court must assume that defendants falsely and maliciously stated that plaintiff sent out letters to fellow attorneys asking for financial aid to underwrite his expenses of the campaign in probable violation of the corrupt practices law; that defendants falsely and maliciously stated plaintiff pretended on some of his campaign posters that he was already a judge; that defendants falsely and maliciously stated by innuendo that plaintiff wrongfully neglected to perform his duties as district attorney so that prostitution, gambling and liquor laws were openly and notoriously being violated and that plaintiff did nothing to perform his duties until the defendants' newspaper demanded an investigation.' We concur that statements such as these, presumed on this demurrer to false and malicious, are clearly capable of defamatory meaning.

This court has cited with approval the Restatement definition of 'defamatory' ⁵ which reads 'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.' ⁶ We agree with the trial court that the statements and circumstances alleged in the amended complaint are capable of being given a defamatory meaning that would lower plaintiff in the estimation of the community and deter third persons from associating or dealing with him in his profession as a practicing attorney. The possible implication of the seventh through tenth counts that the defendant was extremely lax, if not corrupt, in performing his duties as district attorney so that prostitution, gambling and liquor laws were openly being violated, if falsely and maliciously made as on demurrer must be assumed, are capable of harming plaintiff's reputation and deterring others from dealing with him. On demurrer, with falsity and malice alike to be assumed, we sustain the trial court finding that the allegations of the amended complaint are not as a matter of law non-defamatory.

There remains the question as to whether the fact that the statements complained of were made about a public figure seeking public office in a judicial campaign places them beyond the reach of a suit for libel. Counsel for appellant newspaper argues that it should, urging this court to adopt the concept of absolute press privilege. ⁷ Proponents of this concept would grant to the press an absolute immunity for criticism of public officials in performance of their public duties. The sharp cut of this contention is not limited to public officials or press critics. As appellant's counsel state in their brief, 'The existence of a field of libel must necessarily be subtracted from the field of free debate * * * It follows, therefore, that any system of law which permits actions for libel automatically restricts or abridges freedom of press and speech and such abridgment is constitutionally prohibited.' Left far...