Hathaway v. Bruggink

• Decision Date: 07 January 1919
• Citation: 168 Wis. 390,170 N.W. 244
• Parties: HATHAWAY v. BRUGGINK ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 390

170 N.W. 244

HATHAWAY

v.BRUGGINK ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1919.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by Charles W. Hathaway against Garrett Bruggink and others. From an order denying an application to restrain plaintiff from proceeding under St. 1917, § 4096, in a proposed examination of certain defendants before pleading, the defendants appeal. Affirmed.

The plaintiff commenced an action by summons and sought to examine the defendants Charles R. Mayhew and Garrett Bruggink before pleading under the provisions of section 4096. Plaintiff's affidavit, upon which such examination was proposed to be had, alleged in substance:

That plaintiff, of good name, fame, and reputation, was at the time the sheriff of Dodge county. That the defendants maliciously composed and published of plaintiff and sent to the Attorney General of Wisconsin the following letter:

“Burnett, Wis. May 4, 1918.

Hon. Spencer Haven, State District Atty. General, Madison, Wis.--My Dear Mr. Haven: We have in this town two saloons. Neither one takes any consideration as to whether they are molesting the peace or not. Our state ‘Blue Law’ prohibits saloons being open on Sunday. We have them open every Sunday. Things go on altogether through the back door. The street entrance is closed on Sunday. We believe that ‘booze’ is being sold to ‘minors,’ and we also believe that it is being sold to our boys in ‘khaki’ by one of them at least. Complaint has been made to the sheriff, but he will do nothing. (Being up to his neck in ‘booze’ most of the time himself.) Waupun and Brandon are dry. On Sundays we are almost overrun with ‘booze hoisters.’ Some of the most disgraceful things are going on that one can imagine. The element here is altogether for ‘booze,’ and those who are taking this in with some degree of patience are getting tired of it. May 3, 1918, we the undersigned went to Beaver Dam, Wis., to see our district attorney, Mr. M____, but we could get no satisfaction. He claimed that it has to be settled locally, and that he could do nothing for us. We however are convinced that he is a man who was put in office by the ‘liquor element.’ His work shows it. Complaints have been made by others in regard to his work in this district. We are advised by the Rev. T____, Milwaukee, Wis., representing the Lord's Day Alliance, that we should see Mr. M____, and that if he did not want to take action, to report the case to you. We are doing this, hoping that in some way or other you may be able to make him see things in a different light. He also advised us that you want every district attorney to do his duty. May we, the undersigned, have the pleasure of having something done here? May we have the privilege of having peace in Burnett? Sincerely yours,

[Signed]

Garrett Bruggink.

S. A. Clifford.

Geo. R. Mayhew.

Geo. W. Smith.

H. J. Haskins.”

The defendants moved the court below to restrain the plaintiff from so proceeding, on the ground that certain of the 17 points upon which plaintiff sought discovery were not relevant and other points related to matters that are privileged. With such motion was presented an affidavit of the defendant Mayhew containing allegations as to facts and reasons why such letter was written and sent. The court denied the defendants' motion, and from the order so denying, and also fixing a time for such examination, the defendants have appealed.C. E. Hooker, of Waupun, for appellants.

Clark & Lueck, of Beaver Dam, for respondent.

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

[1] The only proposition urged by defendants on this appeal is that the letter in question is within the class of absolutely privileged communications and for that reason cannot be made the basis of an action for libel. If it be such, then it necessarily follows that no right to the proposed examination of defendants under section 4096 could be predicated upon it under the unquestioned rule in this state. State v. M. E. R. & L. Co., 136 Wis. 179, 116 N. W. 900, 18 L. R. A. (N. S.) 672.

Plaintiff insists that the communication in question neither charges the violation of any law, nor does it ask for any specific relief, and that therefore it does not come either within the class of absolute or of qualified privilege, and that the expression in the letter referring to him as “being up to his neck in booze most of the time himself,” which is relied upon as the basis for this libel action, is such a false, irrelevant, unfair, and contemptuous expression as to make it libelous, no matter what view may be taken of the balance of the communication.

[2] In the present disposition of this case the letter must be tested by what appears on the face of it, and anything extrinsic, such as is the defendants' affidavit, must at this time be disregarded.

We think that a reasonable and fair construction of this communication as it is written and in its entirety requires the conclusion that it is in substance a complaint to the Attorney General of this state conveying to him the belief of the writers that the excise laws of this state were being violated in their home town; that no help in that regard could be had from the plaintiff as sheriff or from the district attorney of that county; and that the writers wish that something be done by the Attorney General and that they may “have the privilege of having peace in Burnett.”

[3] The letter states the writers' belief that liquor is being sold in their village to minors. If such sales were being made, they were in violation of section 1577, Stats. Such sales would be violations of the terms and conditions prescribed in the bond required of every licensed saloon keeper by section 1549, Stats. Under this section 1549, an action may be brought against the principals and sureties in such bond for such breach. Such action would be brought in the name of the state of Wisconsin, and under section 14.53, Stats., the Attorney General may be required to and is authorized to represent the state in actions in which it shall be a party.

[4] The plaintiff also argues that the language in the first paragraph of the letter should be construed to mean nothing more than that the saloons therein referred to are open in the sense of permitting persons to enter therein on Sundays, rather than charging that there is a violation of section 1564, Stats., which prohibits the selling, giving away, or bartering of any...