Lehner v. Berlin Pub. Co.

• Decision Date: 06 February 1933
• Citation: 211 Wis. 119,246 N.W. 579
• Parties: LEHNER v. BERLIN PUB. CO. ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 119

246 N.W. 579

LEHNER

v.BERLIN PUB. CO. ET AL.^a1

Supreme Court of Wisconsin.

Jan. 10, 1933.

Dissenting Opinion Feb. 6, 1933.

Appeal from a judgment of the Circuit Court for Waupaca County; Byron B. Park, Circuit Judge.

Action by Philip Lehner against the Berlin Publishing Company and others. From a judgment for plaintiff, defendants appeal.--[By Editorial Staff.]

Reversed, with directions.

Action for libel commenced August 6, 1931. From a judgment in favor of the plaintiff entered May 9, 1932, the defendants appeal.

The plaintiff, an attorney at law, brought two separate actions against the defendant corporation as the publisher of a newspaper and the individual defendants as manager of the corporation and editor of the paper, demanding damages for publishing in the newspaper of and concerning him two separate articles alleged as libelous. The two actions were tried together. One of the actions was finally disposed of by this court by a decision handed down December 6, 1932, 245 N. W. 685, which held the article therein involved absolutely privileged as a fair and true report of judicial proceedings and directed dismissal of the complaint. The article therein involved is set out in the opinion in that case at page 686 of 245 N. W., and will not be again set out herein. That article will be referred to herein as the article of March 6 (1930). The article herein involved, which will be herein referred to as the article of April 9 (1931), is as follows:

“Supreme Court Upholds Judge in Kelm Divorce Case.

Case Attracted Attention When Lehner Ran for Circuit Judge.

The Wisconsin Supreme Court Tuesday agreed that Circuit Judge C. M. Davison of Dodge County was justified in setting aside a divorce awarded Ewalt H. Kelm, of Princeton. Judge Davison set aside the decree after the defendant, Vivian Whitney Kelm, swore to an affidavit which charged Attorney Philip Lehner and Attorney K. J. Callahan, of Montello, with inducing her to sign certain documents through misrepresentation and fraud. The woman claims she was called to Mr. Lehner's office, informed of the divorce proceedings begun by her husband. Mr. Lehner claims that she asked him to recommend a lawyer as her counsel, and he named Mr. Callahan. Mrs. Kelm alleges that Mr. Lehner called Mr. Callahan without her knowledge and that both induced her to sign documents, the contents of which she was not aware of. In the Supreme Court appeal, Mrs. Kelm's lawyer, L. C. Mitchell, of Oshkosh, and associate counsel, stated that Mr. Lehner took ‘unfair advantage of the ignorance of this defendant in regard to legal procedure and thus fraudulently while representing the plaintiff, secured her signature to the documents.’ The case was brought prominently before the public by the Journal. It was a coincidence that at the time Lehner was opposing Van Pelt for the circuit judgeship, he charged that such publication was part of the ‘Van Pelt propaganda.’ The Kelms were wed in 1923. They have two children. Both are residents of Green Lake County.”

The trial court ruled as matter of law that the article of April 9 is not a fair and true report of judicial proceedings, and is libelous per se, and submitted to the jury the question whether the defendants were actuated by express malice in publishing it, which they answered in the affirmative, the amount of the plaintiff's compensatory damages, which they assessed at $7,000, and the amount of the exemplary damages, if any they saw fit to assess, which they assessed at $10,000. The issues of the two cases were submitted in a single verdict. Judgment was entered herein in favor of the plaintiff against all three of the defendants for both the compensatory and exemplary damages, a total of $17,000. Evidence was received on the trial as to the wealth of the defendant corporation. Mr. Lehner was a candidate for election as circuit judge at the April 1, 1930, election and for nomination and election as representative in Congress at the primary and general elections of that year. The article of March 6 was used against him in all three of these campaigns. He received the nomination as candidate for Congress but was defeated in both general elections.

FRITZ, OWEN, and WICKHEM, JJ., dissenting.

Norman E. Wood, of Berlin (T. L. Doyle, of Fond du Lac, of counsel), for appellants.

Lehner & Lehner, of Princeton (John E. O'Brien, of Fond du Lac, of counsel), for respondent.

FOWLER, J.

The appellants contend that the trial court should have (1) directed a verdict for defendants because the article was a true and fair report of a judicial proceeding; or (2) should have submitted to the jury whether it was such report; (3) evidence was erroneously received over the objection of defendants; (4) the court erroneously refused to instruct the jury as requested by the defendants; (5) the court erred in submitting the question of defendants' express malice to the jury; (6) the court erred in including exemplary damages in the judgment; (7) the compensatory damages assessed by the jury are excessive.

[1] 1, 2. The article of April 9 is libelous per se. It charges Mr. Lehner with inducing Mrs. Kelm to sign certain documents through misrepresentation and fraud, and it charges that Mrs. Kelm's attorney in the Supreme Court stated that “Mr. Lehner took unfair advantage of the ignorance of Mrs. Kelm and thus fraudulently while representing the plaintiff (her husband) secured her signature to documents.” It was not a true and correct report of a judicial proceeding, because it falsely indicates in its caption that this court upheld the action of Judge Davison in setting aside the Kelm divorce judgment and in its first paragraph falsely states that this court justified his such action. This court merely held that the order setting aside the judgment was not appealable. To amount to an upholding or justification of the action of Judge Davison the decision would have had to affirm his order on the merits or on the ground that it was not an abuse of discretion. The decision did not pass on either of these matters. See opinion in Kelm v. Kelm, 204 Wis. 301, 235 N. W. 787.

3. The items of evidence claimed to have been erroneously received are numerous and will be separately considered. The situation is complicated by the trial of the two cases together. Some of the evidence objected to was admissible upon the issues involved in the case based upon the article of March 6 but not in the instant case.

[2] (a) The article of March 6 was reprinted in a newspaper published in Menasha. If receivable in the case based on the March 6 article, as bearing upon the extent of the circulation or publication of that article, it manifestly had no bearing upon the issues of this case and its receipt should have been refused or limited to the other case.

[3][4] (b) The article of March 6 was received in evidence, without limiting its effect to the case based on that article, in which it was manifestly receivable. The defendants urge that it was inadmissible upon the issues of this case for any purpose, because its publication was absolutely privileged. The plaintiff claims it was admissible in the instant case as bearing upon the question of express malice in publishing the article of April 9. There is no doubt of the general rule that other publications by the defendant of libels are admissible as tending to show express malice in the publication which is the basis of the action. The question is not as to that rule, but whether a publication absolutely privileged is an exception to it. The precise point seems not to have been decided except in a New Jersey case. Evening Journal Ass'n v. McDermott, 44 N. J. Law, 430, 431, 43 Am. Rep. 392. It was therein squarely held that a previous privileged publication is not evidence of malice and consequently not receivable in evidence. This rule is repeated citing the McDermott Case, in Fahr v. Hayes, 50 N. J. Law, 275, 13 A. 261, 264. It was held in Shinglemeyer v. Wright, 124 Mich. 230, 82 N. W. 887, 50 L. R. A. 129, that a letter written by defendant to the superintendent of police of a city in which plaintiff is accused of stealing property of the defendant, and statements of defendant to police officers connected with the city detective department accusing defendant of the theft, were inadmissible to show malice, as they were privileged communications. We find no other cases upon the point. It is stated in 1 Wigmore on Evidence, § 404 (2) that: “The suggestion that such an (defamatory) utterance when privileged is not thus evidential (on the question of malice) has not been generally accepted and seems unsound.” The author cites nothing upon the point but the New Jersey cases above referred to. With his dictum that the suggestion “seems unsound” we differ. It seems to us that a publication absolutely privileged ought not to be received in evidence to show malice. The original publication may or may not have been maliciously made. Being lawfully published, as absolutely privileged, the presumption of general malice which follows from the publication of a false and defamatory article not privileged does not obtain. This presumption rests upon the unlawfulness of the publication. Where the publication is lawful there is nothing for the general presumption to rest upon. The privileged publication would not tend to show express malice unless its publication was itself actuated by express malice. It ought not to be presumed that its publication was actuated by express malice, and attempt to prove or refute express malice in its publication would lumber the case with collateral issues. We are of opinion that a publication absolutely privileged is not admissible to show malice in the publication of any other libelous article.

[5] (c) The case of Kelm v. Kelm, referred to above, finally came on for trial in the circuit court of Green Lake county before Judge Werner, and judgment therein went for the plaintiff in ...