Morse v. Modern Woodmen of Am.

• Citation: 164 N.W. 829,166 Wis. 194
• Parties: MORSE v. MODERN WOODMEN OF AMERICA.
• Decision Date: 23 October 1917
• Court: United States State Supreme Court of Wisconsin

166 Wis. 194

164 N.W. 829

MORSE

v.MODERN WOODMEN OF AMERICA.

Supreme Court of Wisconsin.

Oct. 23, 1917.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Alfred Leslie Morse against the Modern Wooden of America. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Libel. The defendant is a fraternal beneficiary society, incorporated in Illinois and doing business in that and adjoining states. The plaintiff was a member of the society, and held a certificate or policy of insurance therein. In 1912 the Head Camp or governing body of the defendant met and changed the by-laws and increased the rates of insurance. This action aroused opposition among policy holders, and agitation for repeal of the new by-laws was widespread, while officers of the Head Camp carried on through their agents and local camps an active campaign by circulars and lectures to retain the new by-laws and rates. The plaintiff participated as a speaker and writer in this contest as an “insurgent,” in favor of the repeal of the new rates. In the month of March, 1913, there was circulated in Wisconsin and other states, among the members of the order, an unsigned circular, entitled “Who's Who and Why. The Pedigree of Alfred Leslie Morse. M. S.” This circular characterized plaintiff as a “mud slinger,” and said that the tale of his life could not well be told around the neighbors' firesides. It also stated that the plaintiff deserted his wife and six children while living at Necedah, Wis., in 1897, and contained a copy of a statement, purporting to be signed by the plaintiff's former wife, stating that plaintiff abandoned her and six children at Necedah in 1897 and afterwards obtained a divorce from her on perjured testimony. The circular also stated that plaintiff did not visit his aged father until the death of his mother, and that his unfilial conduct so enraged his father that he (the father) disinherited the plaintiff, and made the plaintiff sign over his interest in the estate to his deserted wife.

The publication and circulation of this circular is the libel complained of in this action. The answer denied that the defendant's agents or officers composed, published, or circulated the libelous paper, alleged that the article was in fact true, and also alleged as a separate defense that the plaintiff sued Benjamin F. Keeler for the same libel in the circuit court of La Crosse county, and obtained judgment in that action after trial thereof for $1, and that said judgment has been paid to the clerk of said court and the judgment satisfied of record.

The jury, upon the trial of the present action, returned a special verdict as follows:

“Question 1. Did the defendant, through its general officers or agents, or either or any of them, authorize or direct the publication or circulation of the circular entitled ‘Who's Who and Why,’ set forth in plaintiff's complaint herein? Answer. Yes.

Question 2. If you answer question No. 1 ‘No,’ then did the defendant, through its general officers or agents, or either of them, learn that the said circular was being circulated and used by agents and subordinate officers of the order in the campaign against the so-called ‘insurgents'? Answer. (Not answered by jury.)

Question 3. If you answer question No. 2 ‘Yes,’ then did such officers and agents, or either or any of them, acquiesce in the continued use thereof, for such purpose? Answer. (Not answered by jury.)

Question 4. If you answer either questions No. 1 or No. 3 ‘Yes,’ then were such officers actuated by express malice? Answer. Yes.

Question 5. Is it true that at the time of the publication and circulation of said circular that the plaintiff was a ‘mud slinger’? Answer. No (by direction of the court).

Question 6. Is it true that investigation of the life and character of Alfred Leslie Morse, M. S., has disclosed an amazing story that cannot well be told around the neighbors' firesides, for the reason that nothing has been found in his life that would serve as an example to the young and rising generation? Answer. No.

Question 7. Is it true that while the plaintiff was serving as a minister of the gospel, residing at Necedah, Wis., he deserted his wife and six children in the fall of 1897? Answer. No (by direction of the court).

Question 8. Is it true that the plaintiff procured a divorce from his wife in Columbia county, Wis., on perjured testimony? Answer. No (by direction of the court).

Question 9. Is it true that in the fall of 1897 the plaintiff, though able to earn money to support his wife and children, refused to do so? Answer. No.

Question 10. Is it true that the plaintiff did not visit his aged father until the death of his mother, and that he was with difficulty persuaded to attend the funeral, and that said conduct so enraged his father that he not only made provision to disinherit the plaintiff, but made him sign to his wife and children all interest that the plaintiff might have in his estate? Answer. No (by direction of the court).

Question 11. At what sum do you assess the plaintiff's compensatory damages? Answer. Fourteen thousand eight hundred dollars ($14,800).

Question 12. At what sum do you assess his punitory damages? Answer. Five thousand dollars ($5,000).”

The trial court directed that $4,800 be remitted from the compensatory damages, which was done, and judgment entered for $10,000 compensatory damages and $5,000 punitory damages, with costs, and the defendant appeals.Wolfe, Wolfe & Reid, of La Crosse, and Truman Plantz, of Warsaw, Ill. (C. W. Graves, of Viroqua, and Nelson C. Pratt, of Omaha, Neb., of counsel), for appellant.

Mahoney & Schubert, of La Crosse (John D. Dennison, Jr., of Des Moines, Iowa, and N. C. Else, of Osborne, Kan., of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

[1][2] The appellant's first contention is that it is a purely benevolent association, that all its funds are trust funds, and that the same rule should be applied to it as has been recently applied by this court to incorporated charitable hospitals, namely, that it is not to be held liable for the torts of its employés or agents, in the absence of negligence in their selection. Morrison v. Henke, 165 Wis. 166, 160 N. W. 173. We cannot sustain this contention. While the order has social, benevolent, and charitable features, it is essentially, so far as the Head Camp is concerned, an insurance corporation conducted on the assessment plan. It appears in the evidence that it has two principal funds: The benefit fund, out of which death claims are to be paid; and the general fund, which may be used for other purposes, and out of which hundreds of thousands of dollars were paid for services and expenses in combating the effort to secure a repeal of the legislation raising the premium rates. True, the defendant has no vast reserve fund, as the old line insurance companies have, and for legislative purposes a clear distinction may be drawn between the two classes of corporations. N. W. M. L. Co. v. State, 163 Wis. 484, 155 N. W. 609, 158 N. W. 328. But its funds do not seem to be any more truly trust funds than the funds of any mutual life insurance company, and we apprehend that this contention would not be made, if the defendant were such a company. The doctrine is now very well settled that a corporation is liable for the torts of its agents within the scope of their employment and in furtherance of the corporate business, and this includes libel. Zinc Carbonate Co. v. Bank, 103 Wis. 125, 79 N. W. 229, 74 Am. St. Rep. 845; Odgers on Libel and Slander (5th Ed.) p. 592; Newell on Slander and Libel (3d Ed.) § 450. In passing, we may say that we regard the evidence as sufficient in the present case to warrant the jury in finding that the libel here complained of was either authorized or ratified by the responsible officers or agents of the defendant company in an attempt to further the corporate business.

[3][4] Two or three well-established principles may well be stated before proceeding further. A libel may be the joint act of several persons, who may in such case be sued jointly or separately at the plaintiff's election. Monson v. Lathrop, 96 Wis. 386, 71 N. W. 596, 65 Am. St. Rep. 54. The plaintiff may sue two separately, and in neither action will the liability of the other furnish any defense or mitigation of damages. Both actions may be prosecuted to judgment; but there can be but one satisfaction. When one judgment is satisfied, it becomes a bar to the other...