Pfitzinger v. Dubs

• Decision Date: 27 November 1894
• Docket Number: 186.
• Citation: 64 F. 696
• Parties: PFITZINGER v. DUBS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F. 696

PFITZINGER v. DUBS et al.

No. 186.

United States Court of Appeals, Seventh Circuit.

November 27, 1894

Francis J. Woolley and Wm. Richie, for plaintiff in error.

James Lane Allen and Samuel E. Knecht, for defendants in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

This is an action brought by the plaintiff in error, a minister of the gospel, and a citizen of Buffalo, N.Y., against the defendants, citizens of Chicago, Ill., for printed libel. The defendants are, respectively, editor, manager, and publisher of a German religious newspaper published at Chicago, Ill called the Deutsche Allgemeine Zeitung. On the 22d day of September, 1893, they published in the said paper a communication of and concerning the plaintiff, purporting to be a letter from one H. Horn, of Syracuse, N.Y., in the German language, and which, translated into English, is as follows:

'From the State of New York.

'Dear Bro. Dubs: The Lord be with you. In the D.A.Z. there was recently asked, among other questions, one directed to L Heinmiller, of Buffalo, New York. As it appears, L. Heinmiller will not answer this question. Why he will not answer it, he knows best. The question is, why does the preacher, L. Heinmiller, of Buffalo, N.Y., compare M. Pfitzinger with a rotten egg, if he has unwavering confidence in M. Pfitzinger? Who the questioner is, I do not know. Perhaps Bro. Heinmiller knows to how many other persons he has made this comparison, and since he does not answer the question I thought it my duty to answer this question myself, for there is a great deal connected with the question that I will not mention just at this time. Well, for the answer to this question: At the time when Pfitzinger was preparing to get me down, and I was preparing to meet him, I opportunely met L. Heinmiller. It was at the time when his brother, G. Heinmiller, was on the way from Germany to the conference at Indianapolis, and passing through Syracuse, and preaching in the evening at the Salem church. After the Divine service, when we, I and Heinmiller, had greeted each other, he at once said to me, 'Bro. Horn, do you think you can get Bro. Pfitzinger down?' I answered: 'I can and will prove my case.' Then Bro. Heinmiller replied: 'Bro. Horn, you cannot get Pfitzinger down any lower than he is. He is low enough. You cannot get him down any lower.' I was amazed to hear such a remark from the man, and said, 'Heinmiller, what do you say?' He said: 'It is a fact, he is low enough; you can't get him down any lower; you can't spoil a rotten egg unless you open it and sh-- in it.' I was still more amazed, and said: 'Why, Heinmiller. how you do talk.' He said: 'That is true.' I was so amazed that I scarcely knew what to say, and wished him good night. This is what Bro. Heinmiller said to me of Pfitzinger, and, as it seems, he has made the same comparison to other persons. I hope that Bro. Heinmiller will not deny this, for a time will come when he cannot deny it. I think still more of Bro. Heinmiller. Still so much. When the conference in Indianapolis was held, and Pfitzinger got no office, I though, so Bro. Heinmiller really knew why he spoke to me in such a manner of Pfitzinger, for what he knew his brother, G. Heinmiller, also knew; and what he knew and believed, those who were chosen as delegates to the Indianapolis conference also knew and believed. Brother Heinmiller, a word to you: Say also freely and openly that you have asserted to others that you have unwavering confidence in Pfitzinger, that you have been drawn into this current, your inner conviction is exactly the opposite, judging from your expressions.

H. Horn, Syracuse, N.Y.'

The declaration contains two counts,-- the first charging that the article is a libel upon the plaintiff as an individual; the second, that the same words are a libel upon him in his special character as a minister of the gospel,--each count having appropriate colloquium, inducement, and innuendoes. No special damage is averred in either count, but only general damages are claimed. There were innuendoes contained in the declaration setting out this letter, showing the sense in which the most offensive portion of the charge would be understood, and the true meaning thereof to be that the plaintiff was totally unfit to be and remain a minister of the gospel, and that he had already fallen to the lowest possible degree of moral, physical, and intellectual filthiness and degradation. There were general and special demurrers put in to the declaration. Upon hearing, the general demurrer was sustained by the court; and, the plaintiff, choosing to stand by the declaration, judgment was entered against him, dismissing the action on the ground that, there being no averment of special damage, and the declaration not charging any specific character of dishonesty, crime, or immorality, the publication was not libelous, and the action could not be sustained.

The only question in the case is whether the demurrer was properly sustained,-- that is to say, whether the words set out in the declaration are actionable, being published of and concerning the plaintiff in a public newspaper; and that depends upon the question whether the words are fairly capable of the construction put upon them by the plaintiff in his declaration. If they are, then the question of the meaning should have been submitted to the jury. It is only where the words are incapable of a construction injurious to the plaintiff's character that the court is justified in taking the case from the jury. Townsh. Sland. & L. (4th Ed.) p. 576; Byrnes v. Mathews, 12 N.Y.St.Rep. 74. The question of the meaning of the words is one of fact, for the jury, unless the court can see at a glance that they are incapable of a construction injurious to the plaintiff's character, and the court should understand the words in the same manner that other persons reading the published article would naturally understand them. That is to say, they are to be taken in their usual acceptation and meaning. Under the first count, if the words, taken in their usual and ordinary sense, as they would be understood by persons reading them, tend to injure or degrade the plaintiff morally or socially, then they are actionable per se. It is not essential that the words should impute dishonesty, crime, or immorality of any specific kind or character. If they tend to degrade or dishonor him, or injure his character, or hold him up to scorn, contempt, or ridicule, or render him of less esteem in the community, morally or socially, then the words are actionable when printed. Of course, the rule is different in slander, or mere spoken words, where it is necessary that some offense known to the law should be imputed. One of the leading cases in New York upon the subject is that of Cooper v. Greeley, 1 Denio, 347. There the words which Horace Greeley had published of and concerning Fenimore Cooper, were these:

'At all events, having published the letter excepted to as a matter of intelligence, without any sort of feeling towards Mr. Cooper, but such as his conduct in the case seemed to excite, we have at all times stood ready to publish cheerfully any correction or contradiction he might choose to send us. He chooses to send none, but a suit for libel instead. So be it then. Walk in, Mr. Sheriff. There is one comfort to sustain us under this terrible dispensation. Mr. Cooper will have to bring his action to trial somewhere. He will not like to bring it to trial in New York, for we are known here; nor in Otsego, for he is known there.'

The declaration was demurred to, and the contention was that the words were not libelous. Of course, the charge is very indefinite. No particular crime or immorality is alleged. But it was contended by the plaintiff that the words contained a charge that he was in bad repute in the county of Otsego, in consequence of being known in that county, and that on that account he would not like to bring a libel suite to trial there. The words were held to be libelous, and their true meaning to be fixed by the innuendo, and the demurrer was overruled.

In White v. Nicholls, 3 How. 266, the United States supreme court lay down the rule thus:

'With regard to that species of defamation which is effected by writing or printing or by pictures and signs, and which is technically denominated a 'libel,' although in general the rules applicable to it are the same which apply to verbal slander, yet in other respects it is treated with a sterner rigor than the latter, because it must have been effected with coolness and deliberation, and must be more permanent and extensive in its operation than words, which are frequently the offspring of sudden gusts of passion, and soon may be buried in oblivion. Rex v. Beare, 1 Ld.Raym. 414. It follows, therefore, that action may be maintained for defamatory words, published in writing or in print, which would not have been actionable if spoken. Thus, to publish of a man, in writing, that he had the itch, and smelt of brimstone, has been held to be a libel. Per Wilmot, C. J., in Villers v. Monsley, 2 Wils. 403. In Cropp v. Tilney, 3 Salk. 225, Holt, C. ., thus lays down the law: 'That scandalous matter is not necessary to a libel, it is enough if the defendant induces an ill opinion to be had of the plaintiff, or make him contemptible and ridiculous.' And Bayley, J., declares in McGregor v. Thwaites, 3 Barn.

& C. 33, 'that an action is maintainable for slander either written or printed, provided the tendency of it be to bring a man into hatred, contempt, or ridicule."

In a very recent case decided by the supreme court of Wisconsin and reported in 58 N.W. 245 (Kay v. Jansen), the complain alleged...