Pfister v. Milwaukee Free Press Co.

• Decision Date: 03 June 1909
• Citation: 139 Wis. 627,121 N.W. 938
• Parties: PFISTER v. MILWAUKEE FREE PRESS CO. ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 627

121 N.W. 938

PFISTER

v.MILWAUKEE FREE PRESS CO. ET AL.

Supreme Court of Wisconsin.

June 3, 1909.

Appeal from Circuit Court, Milwaukee County; Samuel D. Hastings, Judge.

Action by Charles F. Pfister against the Milwaukee Free Press Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was brought to recover damages alleged to have been sustained by reason of the publication of a series of alleged libelous articles by the defendant the Milwaukee Free Press Company in reference to the plaintiff, and resulted in a verdict for $10,000 compensatory damages and $5,000 punitory damages in favor of the plaintiff. Judgment was entered upon the verdict, and from such judgment this appeal is taken.

Theodore Kronshage, Jr., James K. Ilsley, Howard Greene, James H. Tweedy, and H. A. J. Upham, alleged stockholders, officers, and directors of the Free Press Company, were originally named as defendants, but the action was discontinued as to such defendants. The original complaint embraced nine causes of action, based upon nine different alleged libelous articles. The third, sixth, and eighth causes of action alleged in the complaint were dismissed before trial. On August 4, 1905, a grand jury of Milwaukee county returned an indictment against the plaintiff, charging him with having committed the crime of larceny as bailee by unlawfully, feloniously, and fraudulently having stolen, carried away, and converted to his own use the sum of $14,000, the property of the Wisconsin Rendering Company, a corporation. The indictment further recited that said sum of money was placed in the hands of the plaintiff by said corporation to be kept, used, and expended by plaintiff for the purpose of obtaining for the corporation a large and valuable contract from the city of Milwaukee for the disposal of garbage, and that if the money was not so used it was agreed that the same should be returned to the Wisconsin Rendering Company. Upon the return of this indictment the plaintiff issued and furnished to all the newspapers published in Milwaukee a statement denying his guilt and asserting his innocence. At the time said indictment was returned the Wisconsin Rendering Company was indebted to the First National Bank of the city of Milwaukee in a considerable sum of money, which indebtedness was evidenced by overdue paper, and immediately thereafter the plaintiff purchased such paper from the holder, and commenced an action thereon. In connection with the suit a statement was issued and given to the press by plaintiff's counsel, to the effect that, if plaintiff was indebted to said Wisconsin Rendering Company,it might set up such indebtedness by way of offset or counterclaim, and thus determine the question of whether the plaintiff was guilty of conversion or larceny in a civil suit, where the defense interposed might be established by a mere preponderance of evidence. The alleged libelous articles related mainly, though not entirely, to the aforesaid indictment, and to the guilt of the plaintiff of the crime therein charged, or else of the crime of bribery in corruptly using the moneys deposited with him, if the same were not in fact converted by him.

The various causes of action set forth three general classes of charges. (1) The plaintiff was guilty of the crime of larceny as bailee, as charged in the indictment returned against him, or was guilty of the crime of bribing members of the common council with the moneys deposited with him by the Wisconsin Rendering Company for the purpose of procuring a favorable contract for said company with the city of Milwaukee for the disposal of its garbage; (2) the plaintiff purchased a controlling interest in the Milwaukee Sentinel, a newspaper published in the city of Milwaukee, to prevent disclosures damaging to his reputation, which were about to be made in a libel suit he had commenced against that paper prior to his buying the controlling interest therein; (3) the plaintiff, by buying the outstanding overdue paper of the Wisconsin Rendering Company, and bringing suit thereon, was endeavoring to confuse the public, and to conceal his guilt by diverting attention therefrom. The complaint further alleged that the defendant the Milwaukee Free Press Company was a corporation engaged in the business of publishing the Milwaukee Free Press, a newspaper having a large circulation in the city of Milwaukee and in the state of Wisconsin; that the defendant Harry P. Myrick was the managing editor of said newspaper at the time the alleged libelous articles were published, and still is such editor, and as such had the immediate direction and control of all matters published therein, and had, and has, the active management of the publication of said newspaper; that for many months the said newspaper had pursued a policy of defaming and vilifying plaintiff, and had from day to day caused violent and inflammatory articles to be published of and concerning him, in which it was insinuated that he was guilty of various illegal acts; that such matter was published with the knowledge, acquiescence, and consent of the members of the governing body of the corporation; and that such policy was actuated by malice toward plaintiff, and for the purpose of wantonly degrading him in the public esteem, and of injuring his reputation and business; that the articles which formed the basis for this action were actuated by the same malicious purpose, and were published in execution of it; that plaintiff was a man prominent in the business affairs of the city of Milwaukee, holding many positions of trust and confidence in moneyed, manufacturing, transportation, industrial, and other corporations and enterprises, as well as being the owner of a majority of the stock in the Sentinel Company, and that by reason of the defamatory publications he had suffered damages to his reputation and credit to the amount of $250,000.

Three separate defenses were interposed by the Milwaukee Free Press Company to each of the nine causes of action originally set out in the complaint, and a general plea in mitigation of damages was interposed as to all of the causes of action. The first defense to the first cause of action set forth, in substance, that portions of the article published were omitted from the first cause of action, and that it was necessary to read the omitted portions in connection with the portion included in the complaint in order to arrive at the true tenor and meaning of the article, and such omitted portions were set forth as part of the first defense. The answer then alleged that between July 7, 1897, and February 23, 1898, there was pending before the board of public works of the city of Milwaukee, and with the common council of said city, the matter of disposing of garbage by contract with the lowest bidder for the period of five years; that said contract involved the expenditure of more than $250,000; that the Wisconsin Rendering Company was a bidder on said contract in its own name, its bid being $368,750; that it was also a bidder on said contract in the name of Cooper & Burke, such bid being $300,000; that John J. Crilley and James O'Donnell jointly bid on the same contract, their bid being $274,500; that each bid was accompanied by a bond or deposit of $20,000; that the contract was awarded to Crilley & O'Donnell; that thereafter Crilley filed with the city clerk, and laid before the common council, a petition purporting to be signed by Crilley & O'Donnell, asking to be relieved from said bid and the accompanying bond, for certain reasons stated in such petition; that thereafter such proceedings were had that the petitioners were released, and the contract was awarded to Cooper & Burke, for the sum of $300,000; and that Crilley & O'Donnell were released without payment or consideration. While proceedings for release were pending, O'Donnell filed an affidavit with the city council, in which he set forth that he had not signed, or authorized any one to sign, the petition asking for relief, and did not know of its existence until January 31, 1898, and that on February 2d following he was informed by Crilley that he had an agreement with the Wisconsin Rendering Company by the terms of which said Crilley was to receive $12,000 from the Wisconsin Rendering Company as soon as the contract was awarded on the Cooper & Burke bid; that in connection with said affidavit O'Donnell filed with the city council a communication, stating that he was ready to carry out said contract according to the terms of the bid of Crilley & O'Donnell; that in pursuance of such communication a committee of the common council was appointed to investigate said matter, and a large amount of testimony was taken in reference thereto; that evidence was offered tending to show that the Wisconsin Rendering Company agreed to pay Crilley & O'Donnell the sum of $25,000 in the event of their failure to go on with the contract; that the foregoing matters were published in the official proceedings of the common council, and in the public press of the city of Milwaukee, and were publicly known throughout said city and the state of Wisconsin prior to August 6, 1905; that aside from the report of the indictment and arrest of the plaintiff, the published article, according to its true intent and meaning, had reference only to the garbage contract transaction, and the unlawful payments of money by the plaintiff to Crilley. The answer then proceeds to deny that the words published meant, or were intended to have, the meaning attributed to them by the innuendoes of the complaint.

The second defense interposed pleaded the same matter by way of justification that was contained in the first defense.

The third defense adopted the averments of the first defense, and further alleged that, while the proceedings were pending before the common council of the city of Milwaukee with reference to the letting of the garbage...