Grell v. Hoard

• Court: Wisconsin Supreme Court
• Writing for the Court: ROSENBERRY
• Citation: Grell v. Hoard, 206 Wis. 187, 239 N.W. 428 (Wis. 1931)
• Decision Date: 08 December 1931
• Parties: GRELL v. HOARD ET AL.

206 Wis. 187

239 N.W. 428

GRELL

v.HOARD ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from an order of the Circuit Court for Jefferson County; George Grimm, Circuit Judge.

Action by Henry J. Grell against Halbert L. Hoard and others. From part of an order overruling demurrer to complaint, defendants appeal, plaintiff filing motion for review of part of order sustaining demurrer.--[By Editorial Staff.]

Affirmed in part, and reversed with directions in part.

Action begun December 20, 1930; order entered May 20, 1931. Libel. Demurrer. The complaint sets forth ten separate causes of action, based on ten separate publications. The defendants demurred separately to each cause of action on the ground that the facts stated did not constitute a cause of action. The court sustained the demurrer to each of the causes of action except the sixth, but as to the sixth, overruled the demurrer, and from the order overruling the demurrer, the defendants appeal.Olin & Butler and H. H. Thomas, all of Madison, for appellants.

Mistele & Smith, of Jefferson, for respondent.

ROSENBERRY, C. J.

The order of the court as to the first five causes of action is unchallenged. The plaintiff has filed a motion for a review of that part of the order which sustained the demurrer to the seventh, eighth, ninth, and tenth causes of action. In view of the conclusion which we have reached, we shall set out the sixth cause of action; it being apparent, if the court was in error in overruling the demurrer to that part of the complaint, the order sustaining the demurrer as to the remainder of the causes of action must be affirmed.

“Cause No. VI.

That on the 3rd day of October, 1930, the defendant, W. D. Hoard & Sons Company, as the publisher of said newspaper, and the said defendant, Halbert L. Hoard, as managing editor thereof who then directed and controlled and was then controlling its policy, with the intent to defame and injure the plaintiff in his good name and reputation, pubished, printed, uttered and circulated said newspaper, the ‘Jefferson County Union,’ throughout the County of Jefferson, and the State of Wisconsin, of and concerning this plaintiff, the false and defamatory matter following, namely:

‘The Highwayman.

The Milwaukee Sentinel says the acceptance of the deadly grade-crossing by Americans as a necessary evil of their civilization is like the acceptance by the patient and benighted Hindu of the presence of the deadly cobra, knowing that this inmate of his hut will sooner or later cause himself or some member of his family to die. It is not alone the grade-crossing that has a Hindu-like acceptance here. There is the deadly side ditch (meaning ditches constructed under the supervision of this plaintiff) as well. A car gets off the beaten track, goes into the ditch, turns over, and pins the owner underneath. The “highwayman” (meaning this plaintiff) who dug the ditch with a machine apparently built for murder, says, “It's not my fault, he must have been speeding--my penalty for speeding is death.” Isn't it about time we revived the old word, “highwayman,” (meaning this plaintiff) for a man who will take an innocent road like our high road to Jefferson and dig killing ditches alongside it. (Meaning that this plaintiff has constructed ditches to imperil the safety of persons using the highway). Mr. Grell (meaning this plaintiff) has taken many other innocent roads since and has made killers of them. In the old days a “highwayman” was a killer. What's the difference? (Meaning that there is no difference between highwaymen that feloniously murdered persons and this plaintiff).'

And this plaintiff alleges that the said defendants published the said article of and concerning this plaintiff, and intended thereby to charge, and did thereby charge, that this plaintiff is inefficient and incapable in the conduct of his office and that he handles the same without regard for human life and personal safety.”

The difficulty in this case arises from an attempt to discover the true interpretation of the article complained of. In its decision the trial court said:

“The plaintiff is the Highway Commissioner of Jefferson county. Under the statutes he has charge of the construction and maintenance of all highways in the county built with state or county aid other than the state trunk highways. The county Highway Committee is also given certain duties and powers by the statutes. The county Highway Commissioner is commanded by law to do or cause to be done all necessary engineering for the establishment, construction, improvement and maintenance of highways. * * *

He is not the mere servant of the Highway Committee, but has powers and duties beyond those of the Committee. Both are public officers and their official acts are subject to the reasonable criticism of the public.

A careful reading of the several articles set forth in the complaint which form the basis of this action creates the conviction that he is now making a relentless war on the practice of placing loose gravel on the highways and the digging of what he terms ‘the deadly side ditch.’ With one exception these articles are clearly directed against ‘the things being done’ and not against the man under whose immediate direction and supervision the work is accomplished, and only affect the latter because of his connection with the acts condemned.

* * * These acts may be highly praised or they may be condemned in no uncertain terms. Only thus is progress and improvement attained. Approval will produce pleasure and perhaps gratified pride on the part of the official, while condemnation may severely hurt his feelings. As praise and approval...