Hucko v. Jos. Schlitz Brewing Co.

• Decision Date: 27 January 1981
• Docket Number: No. 80-660,80-660
• Citation: 302 N.W.2d 68,100 Wis.2d 372
• Parties: Donald HUCKO, Plaintiff-Respondent, v. JOS. SCHLITZ BREWING COMPANY, a Wisconsin Corporation; Daniel F. McKeithan, Jr.; James M. Clabault; James M. Ruth; James E. McCowan; and Thomas R. Errath, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 68

302 N.W.2d 68

100 Wis.2d 372

Donald HUCKO, Plaintiff-Respondent, v. JOS. SCHLITZ BREWING COMPANY, a Wisconsin Corporation Daniel F. McKeithan, Jr.; James M. Clabault; James M. Ruth; James E. McCowan; and Thomas R Errath, Defendants-Appellants.

No. 80-660.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 19, 1980.

Opinion Released Jan. 27, 1981.

Opinion Filed Jan. 27, 1981.

Clay R. Williams of Gibbs, Roper, Loots & Williams, Milwaukee, and Anthony F. Phillips of Willkie, Farr & Gallagher, New York City (on brief), Philippe M. Salomon and Joseph T. Baio, New York City, of counsel, for defendants-appellants.

William R. Jansen of McConnell & Campbell, Chicago, Ill., and Michael J. Spector of Quarles & Brady, Milwaukee (on brief), and Francis J. McConnell, Chicago, Ill., of counsel, for plaintiff-respondent.

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

DECKER, Chief Judge.

We granted this discretionary appeal from a nonfinal order of the trial court ¹ to determine whether the defendants in this case, none of whom are engaged in the business of publishing newspapers, magazines, or periodicals, fall within the coverage of sec. 895.05(2), Stats. The statute requires that an allegedly libeled plaintiff make a written demand for a retraction or correction before commencing a defamation action against certain defendants. The trial court held that sec. 895.05(2) applies only to news media defendants who publish newspapers, magazines, or periodicals, and denied the motions of the defendants in this case to dismiss plaintiff's defamation claims for noncompliance with the statute. We disagree and conclude that sec. 895.05(2) applies to nonmedia defendants whose libelous statements are published in a newspaper, magazine, or periodical, as well as to media defendants who ultimately publish the statements in their newspapers, magazines, or periodicals. We also conclude that sec. 895.05(2) does not apply to defamation claims arising out of statements broadcast on radio and television.

Because the plaintiff failed to give the individual defendants the notice required by sec. 895.05(2), Stats., we reverse that portion of the trial court order denying dismissal of plaintiff's claims for defamation against them arising out of publication in any newspaper, magazine, or periodical. We conclude as a matter of law that plaintiff complied with sec. 895.05(2) by giving the required notice to defendant Jos. Schlitz Brewing Company (Schlitz), and therefore we affirm that portion of the order denying dismissal of plaintiff's defamation claim against Schlitz. We also affirm that portion of the trial court order denying dismissal of plaintiff's claims against both the individual defendants and Schlitz, arising out of statements broadcast on radio and television.

On July 5, 1979, plaintiff Donald Hucko (Hucko), a former managerial employee of

Schlitz, filed a complaint alleging, inter alia, defamation arising out of statements made by Schlitz which were printed in various newspapers and magazines, and were broadcast by radio and [100 Wis.2d 375] television stations. The complaint alleged that Schlitz and five of its officers (individual defendants) "did compose, issue, and publish, or cause to be composed, issued, and published" in the various news media allegedly defamatory statements. The complaint also alleged compliance with sec. 895.05(2), Stats., as to Schlitz, but not as to the individual defendants. Defendants' appeal is limited to that portion of the order denying their motion to dismiss in which the trial court held that sec. 895.05(2) applied only to news media defendants in a defamation claim.

THE STATUTE

Section 895.05(2), Stats., provides:

(2) Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine or periodical, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty. The first issue published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person's statement of the true facts, or so much thereof as shall not be libelous of another, scurrilous, or otherwise improper for publication, published as his statement, shall constitute a correction within the meaning of this section. A correction, timely published, without comment, in a position and type as prominent as the alleged libel, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them. (Emphasis added.)

SCOPE OF SECTION 895.05(2), STATS.

"Statutory construction involves a question of law, and on such questions this court is not required to give any special weight to the conclusions of the trial court." Roe v. Larson, 94 Wis.2d 204, 206, 287 N.W.2d 824, 825 (Ct.App.1979), rev'd on other grounds, 99 Wis.2d 332, 298 N.W.2d 580 (1980). However, "In the absence of ambiguity in a statute, resort to judicial rules of interpretation and construction is not permitted, and the words of the statute must be given their obvious and ordinary meaning." Wisconsin Bankers Ass'n v. Mutual Savings & Loan Ass'n, 96 Wis.2d 438, 450, 291 N.W.2d 869, 875 (1980). "When the statutory language is clear and unambiguous no judicial rules of construction are permitted, and the court must arrive at the intention of the legislature by giving the language its ordinary and accepted meaning." State ex rel. Milwaukee County v. Wisconsin Council on Criminal Justice, 73 Wis.2d 237, 241, 243 N.W.2d 485, 487 (1976).

Although sec. 895.05(2), Stats., does not come into play until libelous matter is published in a newspaper, magazine, or periodical, the statutory language does not limit its application to publishers of newspapers, magazines, or periodicals. The clear and unambiguous language of sec. 895.05(2) applies to defamation claims against defendants "alleged to be responsible or liable" for any libelous publication "in any newspaper, magazine or periodical." This provision applies to defendant Schlitz and the individual defendants, who are "alleged to be ... liable" for libelous publications in various newspapers, magazines, and periodicals.

That clear expression of legislative intent is not an unusual result. ² It is an elementary rule of defamation law that the author of a libelous statement is liable for any secondary publication ³ which is the natural consequence of his or her act. Lehner v. Kelley, 215 Wis. 265, 269, 254 N.W. 634, 636 (1934); 53 C.J.S. Libel & Slander, § 85 (1948). Secondary publication by a newspaper, magazine, or periodical may expose such a publisher to liability as well, but it does not relieve the original author from liability for the secondary publication. Section 895.05(2), Stats., is directed at any person or persons liable or responsible for publication in a newspaper, magazine, or periodical and clearly encompasses the original author of an article, who remains liable for secondary publications in the news media.

Hucko argues that the statutory language of the correction procedure is inappropriate to a nonmedia defendant. Specifically, Hucko contends that for a defendant who does not publish a newspaper, magazine, or periodical, the language of sec. 895.05(2), Stats., "(t)he first issue published after the expiration of one week from the receipt of such notice shall be a reasonable time for the correction," is meaningless. That language refers to the publishing schedule of the newspaper, magazine, or periodical specifically named in the notice in which the author's libel was repeated, and the schedule serves as a universal measuring tool to either the author of the libel or the media repeating it. To comply with sec. 895.05(2), a nonmedia author must publish a correction within this time frame in the same fashion as he published the libelous matter. To argue, as Hucko does, that a nonmedia author cannot compel the news media to repeat the correction is to ignore reality and begs the question. If the author's libel was sufficiently newsworthy that it was republished by the press, his correction should be equally or more newsworthy. Further, the plaintiff can prompt the press to print a correction by serving notice on it as well as on the author. The author discharges his opportunity to correct when he publishes a correction complying with sec. 895.05(2) within the time limits there prescribed, which encourages timely secondary publication by a responsible press.

Because our decision is based solely on the unambiguous language of sec. 895.05(2), Stats., there is no need to resort to statutes and interpretive case law from other jurisdictions. We have searched them all, however, but none of them are sufficiently similar in statutory language to sec. 895.05(2) for profitable comparison. Either by express language in text or title, most are specifically limited in application to media defendants by the respective state legislatures. An exception is 48 N.C.Gen.Stat. § 2429:

Before any action, either civil or criminal, is brought for the publication, in a newspaper or periodical, of a libel, the plaintiff ... shall at least five days before instituting such action serve notice in writing on the defendant, specifying the article and the...