Martin v. Outboard Marine Corp.

• Decision Date: 06 February 1962
• Citation: 113 N.W.2d 135,15 Wis.2d 452
• Parties: James Lee MARTIN, Appellant, v. OUTBOARD MARINE CORPORATION, Respondent.
• Court: Wisconsin Supreme Court

Page 135

113 N.W.2d 135

15 Wis.2d 452

James Lee MARTIN, Appellant, v. OUTBOARD MARINE CORPORATION, Respondent.

Supreme Court of Wisconsin.

Feb. 6, 1962.

Rehearing Denied April 3, 1962.

The order appealed from granted the defendant a new trial on all issues. The plaintiff James Lee Martin commenced a suit for libel against the defendant Outboard Marine Corporation and Robert H. Scott, the sales manager of its Evinrude motors division, based upon a letter of October 30, 1957, which was sent by the defendants to all Evinrude dealers in Indiana, Ohio, and Kentucky. The plaintiff was a dealer in boats, outboard motors and marine equipment in Louisville, Kentucky, and alleged damages to his reputation and business, special and punitive damages, and that the letter was false and published with malice or with gross negligence. The answer denied the allegations and pleaded several affirmative defenses including privilege. The letter complained to be libelous, reads as follows:

'EVINRUDE MOTORS

'Division of Outboard Marine Corporation

'Milwaukee 16, Wisconsin U.S.A.

'October 30, 1957

'TO ALL EVINRUDE DEALERS IN INDIANA, OHIO AND KENTUCKY

'Dear Evinrudealer:

'This is to inform you that Mr. James Lee Martin, 4900 Frankfurt Avenue, Louisville, Kentucky, has never been and is not now an Evinrude dealer. He has been successful in bootlegging a certain number of Evinrude motors up to now and this is to notify you that under no conditions is he entitled to buy Evinrude motors and accessories at anything less than full list price.

'Your cooperation in this case will be greatly appreciated, as it will put a stop to the practices that can rob you of your rightful profits and markets.

'Cordially yours,

'/s/ Bob Scott

'Sales Manager

'R. H. Scott rfs'

The trial was to a court and jury. At the close of the testimony, the court dismissed the action against Scott, the sales manager, and ruled the letter was libelous as a matter of law and conditionally privileged and found no special damages had been proven. Four questions were submitted to the jury which found: (1) The publication was not substantially true; (2) the defendant was actuated by malice; (3) $20,000 compensatory damages; and (4) $6,500 punitive damages. Both parties made numerous motions after verdict, all of which were denied by the trial court excepting one made by the defendant for a new trial grounded upon an error of law committed by the court in not submitting a question to the jury inquiring whether the letter was understood by the recipients thereof in a defamatory sense. From this order the plaintiff appeals.

Hardy & Hardy, Louisville, Ky., Foley, Sammond & Lardner, David E. Beckwith, Milwaukee, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Norman C. Skogstad, John J. Ottusch, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

The first question is whether the defendant waived its right to object to the special verdict by failing to make any request for the inclusion in the verdict of the question inquiring whether the letter was understood in a defamatory sense by the people to whom it was sent. It is true, during the trial the court invited counsel to suggest special verdict questions and the defendant made no objection to the special verdict which was prepared; neither did the defendant request the inclusion in the special verdict of the disputed question. The trial court, on motions after verdict, took the view that after it had ruled the letter was libelous as a matter of law, the defendant was not required under penalty of waiver to insist on an insertion in the verdict of a question which his ruling made unnecessary. Most of the cases cited on the waiver point by the defendant concern cases where an appeal was taken from a denial of appellant's motion for a new trial on the grounds of waiver. One can waive his right to object to the contents of a special verdict by failure to request an additional question. See Hilker v. Western Automobile Ins. Co. (1931), 204 Wis. 1, 231 N.W. 257, 235 N.W. 413; Swanson v. Maryland Casualty Co. (1954), 266 Wis. 357, 63 N.W.2d 743; Johnson v. Sipe (1953), 263 Wis. 191, 56 N.W.2d 852; Bassil v. Fay (1954), 267 Wis. 265, 64 N.W.2d 826; Kanzenbach v. S. C. Johnson & Son, Inc. (1956), 273 Wis. 621, 79 N.W.2d 249; Schimke v. Mutual Automobile Ins. Co. (1954), 266 Wis. 517, 64 N.W.2d 195; Scalzo v. March (1961), 13 Wis.2d 126, 108 N.W.2d 163.

However, here, the trial court's ruling the letter was libelous as a matter of law precluded including the question in the special verdict and the defendant, under such facts, was not required to ask that the question be submitted. On motions after verdict, the trial court was unable to supply the answer to the question as a matter of law because he would have to conclude the letter was not understood by the recipients thereof in a defamatory sense or that the letter was not defamatory in any meaning. The defendant did not waive his right to raise the question of the error of law on motions after verdict. The argument of the plaintiff, based more on form than on substance, would prevent a trial court from correcting a ruling which it believed to be erroneous and which controlled the contents of the verdict. We hold, on these facts, that a trial court under sec. 270.49, Stats., is not so limited in its powers to grant a new trial based on an error of law.

Further discussion of the points raised by the plaintiff require a brief discussion of the law of libel and its anomalies. That these and absurdities exist in the law, there is no doubt. Pollack, Law of Torts, 13th Ed. (1929), 243-249; Courtney, Absurdities in the Law of Slander and Libel (1902), 36 Am.L.R. 552. The indiscriminate use of the phrases 'defamatory per se,' 'libel per se,' 'slander per se,' 'actionable per se,' 'libel per quod' and 'libelous as a matter of law' as sometimes expressing some shade of the same meaning and other times different and various meanings, has led only to confusion. Two opposing rules governing the actionability of libel exist which also add to the confusion.

Defamation is composed of libel and slander. Some courts consider them siamese twins, others identical twins, still others just twins. Historically, they are not twins but siblings. At common-law, all libels were actionable without proof that damages occurred. Damages to one's reputation were conclusively presumed from the publication of the libel itself. A jury could award not only nominal damages but substantial damages by way of compensation of the harm to the plaintiff's reputation without alleging or proving that such damages, in fact, occurred. Shakespeare expressed the idea in the words of Iago:

'Good name in man and woman dear my lord,

Is the immediate jewel of their souls;

Who steals my purse steals trash; 'tis something, nothing;

'Twas mine, 'tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.' Othello, Act III, Scene III.

This is the rule in England and in the minority of states as to all libels, not only those defamatory on their face, sometimes called 'libelous per se,' but also those in which reference to extrinsic facts must be made to establish the defamatory meaning, which sometimes is called 'libel per quod.' Odgers, The Common Law of England, Vol. 1, page 552; Prosser, The Law of Torts, page 587, sec. 39; Restatement of Torts, Defamation, page 165, sec. 569.

A majority of authorities now hold, however, that where extrinsic facts are necessary to prove the defamatory imputation conveyed (libel per quod), damages will not be presumed and such type of libel is not actionable without pleading and proving special damages. Prosser, The Law of Torts, page 587, sec. 93. Kentucky seems to so hold. Towles v. Travelers Ins. Co. (1940), 282 Ky. 147, 137 S.W.2d 1110; Axton Fisher Tobacco Co. v. Evening Post Co. (1916), 169 Ky. 64, 183 S.W. 269, L.R.A.1916E, 667; Elkins v. Roberts (Ky.1951), 242 S.W.2d 994. In such states, the term 'libel per se' is often used to refer to libels defamatory on their face and not libels per quod. In such a meaning, libelous per se becomes synonymous with actionable per se (actionable without proof of special damages). This departure from the common-law is said to have resulted from the confusion of the two meanings of defamation per se which may mean either the words are defamatory on their face or are actionable without proof of damages. Prosser, The Law of Torts, Ch. 19, page 588.

Slander, originally, was not actionable without proof of actual damage of a pecuniary nature, called special damages, but by the 19th Century it was established that some kinds of slander were actionable without proof of damages which would be presumed from the character of the defamatory language. Such slander was thus actionable per se and consisted of an imputation of certain crimes or of a loathsome disease, or affecting the plaintiff in his business, trade, profession or office, and of unchastity to a woman. Restatement of Torts, Defamation, page 170, sec. 570. Newell, Slander and Libel, 3d Ed., C. V, page 97; Odgers, Libel and Slander, 5th Ed., C. III, page 39. Such slander has been referred to as slander per se either in the sense of being actionable without proof of special damages or of being defamatory as a matter of law. All other slander not falling into these seemingly artificial categories, no matter how obvious or apparent, are not actionable without alleging and proving special damages. Restatement of Torts, Defamatory Communications Causing Special Harm, page 185, sec. 575; Newell, Slander & Libel, 3d Ed., page 97, C. V. Having proven such special harm of a pecuniary nature resulting from the action of third persons affected by the slander, the plaintiff may also recover general compensatory damages, in a parasitic manner, for damages to the invasion of his interest in his...