Downer v. Tubbs

• Decision Date: 28 January 1913
• Citation: 152 Wis. 177,139 N.W. 820
• Parties: DOWNER v. TUBBS ET AL.
• Court: Wisconsin Supreme Court

152 Wis. 177

139 N.W. 820

DOWNER

v.TUBBS ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1913.

Appeal from Municipal Court of Outagamie County; Thomas H. Ryan, Judge.

Action by George R. Downer against Peter Tubbs and another. From an order sustaining demurrers to the complaint, plaintiff appeals. Reversed and remanded for further proceedings.

Action for damages for libeling plaintiff.

Kerwin and Timlin, JJ., dissenting.

The complaint, in substance, is as follows:

For a long time prior to the publication hereafter mentioned, plaintiff had been superintendent of the Asylum for Chronic Insane in Outagamie County, Wisconsin, under supervision of a board of trustees and direction of the county board. As such superintendent he was accustomed to expend public money for permanent improvements and to uniformly report and keep account thereof under the head of “Permanent Improvements.” Knowing the facts, November 15, 1909, Peter Tubbs maliciously composed and caused to be published in the Fox River Journal, at Appleton, in said county, of and concerning plaintiff, defendant Westphal--owner of such journal--with knowledge of the facts, participating, this:

“Seymour, Wis., Nov. 15, 1909.

But years after, when we were trying to do good service for Outagamie county and rebuked the Crescent for its exaggeration in holding up our Insane Asylum as a money maker, we showed the public that the treasurer's books did not sustain the claims, and said we should not look to such institution for money making. But my, we excited the management (meaning this plaintiff), and war was declared and carried on at the expense of the county (meaning that the plaintiff at the expense of Outagamie county in unlawful opposition to said defendant), and money flowed freely into the hands of men selected to use it for our defeat at the polls (meaning that plaintiff had used money unlawfully to defeat the said Peter Tubbs for some office). We always believed that this money came from Appleton (meaning the money set apart and intended for use in the lawful administration of the asylum) and was charged up to permanent improvements (meaning that plaintiff had caused such money to be charged up to and made part of the account or statement for permanent improvements), as the management (meaning this plaintiff) thought it would be a permanent improvement to eliminate us from the county board and further meddling with asylum records. One of the townsmen who chanced to be in Appleton was interrogated with ‘What kind of a man is Peter Tubbs?’‘He is all right, I guess,’ was the reply. ‘Well,’ says the interrogator, ‘he is a mighty good man for Outagamie county and a good man for Seymour, but Appleton don't like him.’ Well, really why. Simply this, the great Diana of Outagamie county (meaning this plaintiff) was in danger. Now if you want to realize the full meaning of the situation, then and to-day, read the nineteenth chapter of Acts in the New Testament. It tells the whole story.

Peter Tubbs.”

Defendants, in such publication, intended to refer to the “permanent improvement” account before mentioned, and to plaintiff as “Diana,” as was understood by the readers thereof, and as the fact was, and charge him with concealing from the public, by charges in the “Improvement Account,” unlawful expenditure of money to defeat Mr. Tubbs in his canvass for election to a public office,--to his damage in the sum of $7,000.

Defendants separately demurred for insufficiency and the demurrers were sustained.

John Bottensek and A. M. Spencer, both of Appleton, for appellant.

O. E. Clark, of Appleton, and P. H. Martin, of Green Bay, for respondents.

MARSHALL, J. (after stating the facts as above).

[1][2][3] We are unable to, efficiently, follow the logic of counsel for respondent in support of the decision complained of. It seems to proceed upon the theory that a plaintiff must state a cause of action with technical accuracy and unmistakable clearness in order to satisfy the test of sufficiency. Certainty to a common intent is all that is necessary, generally, even, on a motion to make more definite and certain. On a challenge for insufficiency every reasonable intendment is to be taken in favor of the pleading, all facts deemed pleaded which are set forth expressly or are suggested by fair inference from the particular and general statements, and the pleading held good for any judicial relief shown to be merited whether within the prayer for relief or the particular intent of the pleader. Counsel argue as if it were required to be “certain to a certain intent in particular, precluding all argument, inference and presumption against the party pleading,” contrary to the letter and spirit of the code and the established practice. In an action for libel the pleading must be tested by the liberal rules applicable in general. We will measure the complaint from that viewpoint.

[4][5][6] This is elementary: “Any malicious publication, by printing or writing, or by signs or pictures, which accuses a person of a crime, blackens his character, or tends to expose him to public ridicule, contempt or hatred, is libelous,” Cramer v. Noonan, 4 Wis. 231;Scofield v. Milwaukee Free Press Co., 126 Wis. 81, 105 N. W. 227, 2 L. R. A. (N. S.) 691;Wandt v. Hearst's Chicago American, 129 Wis. 419, 109 N. W. 70, 6 L. R. A. (N. S.) 919, 116 Am. St. Rep. 959, 9 Ann. Cas. 864; or any such conduct which tends to prejudice a person in his legitimate business or imputes to him want of official integrity; Wilson v. Noonan, 23 Wis. 105; or causes him, in his official capacity, to be looked upon with distrust and bring him into disgrace; Wilson v. Noonan, 23 Wis. 105;Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111;Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000.

[7] In connection with the definition, section 2677, Stats. 1911, is important. It expressly dispenses in its letter with necessity for any statement of extrinsic facts, except where necessary to show the meaning of words used. Features formerly required to show application to the plaintiff, are satisfied, commonly, by the general statement that the publication was made concerning the plaintiff. In case of the language being so ambiguous as not, of itself, to reasonably point to the plaintiff, extrinsic facts are required; not to enlarge the meaning, but to enable one to read in connection with environing circumstances giving direction to the libel. Otherwise such facts are only necessary to show that the language used, as it would ordinarily be understood under the circumstances, fairly suggests plaintiff as the objective, and includes the essential libelous elements.

[8] The pleading here contains the general statutory allegation. It states facts calculated to clear up any ambiguity as to whether it is applicable to the plaintiff and capable of the libelous meaning ascribed. If there be ambiguity in it, such facts are material and possibly vital. Does the complaint, as a whole, giving to the alleged libelous words the ordinary meaning which might fairly be ascribed to them under the circumstances, show that they are fairly capable of being considered as pointing to plaintiff and having the libelous meaning ascribed to them or some other libelous meaning? That is the question. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. Rep. 511;Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724.

[9] To aid as to the application of the article to respondent and capability of its being libelously understood, the pleader has, in general, as indicated in the statement, in substance, set forth these facts: (1) During 20 years preceding the action plaintiff has been superintendent of the Outagamie County Asylum for the Chronic Insane, located in the town of Grand Chute, and manager thereof, and as such had established a good reputation and enjoyed public confidence. (2) Annually large sums of public money were, duringsuch time, expended under plaintiff's immediate supervision, including sums for permanent improvements; the latter sums being customarily accounted for and reported under the head “Permanent Improvements,” and the reports printed for information of the public. (3) Defendants knew that fact and used the term “permanent improvements” with reference to such account, kept, reported and published, and the word “management” with reference to plaintiff's official status, and the word “Diana” as a characterizing meaning for him; and the libelous article was so understood by the public.

In view of the foregoing it seems that the word “management,” in the publication, points, quite clearly, to appellant; the language of the article, “war was carried on at the expense of the county,” suggests that plaintiff made war on defendant for personal revenge, corruptly using public funds under his charge to pay the expenses; the words, “money flowed freely into the hands of men selected to use it for our defeat at the polls,” suggests that plaintiff's war was for personal revenge and took the course of his using public funds, corruptly, by placing the same in the hands of his agents to defeat the writer in a political contest for membership of the county board, and the words, “we always believed that this money came from Appleton,” that it came from the depository of public funds, which was, by common knowledge, located in Appleton, and that the corrupt conduct was hidden from the people and, perhaps, the county board or those not in sympathy with plaintiff, by entries in his accounts fictitiously swelling the expenditures recorded under the head of “permanent improvements.”

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