Putnam v. Browne

• Decision Date: 14 January 1916
• Citation: 162 Wis. 524,155 N.W. 910
• Parties: PUTNAM v. BROWNE ET AL.
• Court: Wisconsin Supreme Court

162 Wis. 524

155 N.W. 910

PUTNAM

v.BROWNE ET AL.

Supreme Court of Wisconsin.

Jan. 14, 1916.

Appeal from Circuit Court, Waupaca County; Chester A. Fowler, Judge.

Action by Giles H. Putnam against E. E. Browne and another. From a judgment rendered on the verdict for defendants, plaintiff appeals. Reversed and remanded for new trial.

Action for libel. In the spring of 1913, the plaintiff, a lawyer, was a candidate for county judge of Waupaca county, and the defendant printing company published in its weekly newspaper, the Waupaca Republican-Post, an editorial partially written by the defendant Browne, as follows:

“Do Voters Look With Favor on Distributor of ‘Slush’ Money?

The statement of campaign disbursements in the campaign of 1910 by the Connor campaign committee shows that Giles H. Putnam, candidate from New London for county judge, received several hundred dollars from the big Connor slush fund.

In the records of the office of register of deeds of Fond du Lac county are the following items filed by James A. Hogan, treasurer of the Republican state committee, his temporary residence being at Fond du Lac at that time.

On July 23, 1910, check No. 443 for $31.47 to G. H. Putnam for services and expenses; Aug. 1, 1910, check No. 798, $13 for expense, G. H. Putnam; Aug. 2, 1910, check No. 829, expenses to date, $16.20, G. H. Putnam; August 18, 1910, for organization Waupaca county, $50, to G. H. Putnam; August 18, 1910, organization Manitowoc county, $200, to G. H. Putnam; August 31, for organization in Waupaca county, $75, to G. H. Putnam.

The campaign of 1910 was one of the most important in the history of Wisconsin or even the nation. La Follette had been doing things in the United States senate. The Wisconsin idea was fast becoming nationalized. The special interests of the country were alarmed and after many conferences, decided to make a final stand in Wisconsin against the progressive movement and defeat La Follette at all hazards. They marshalled to their sides every possible available resource and a nation wide conference took place. W. D. Connor, the Marshfield lumberman, who had been chairman a few years before of the Republican state central committee, and who, as such chairman, had a list of valuable names in each county in the state, was selected as their chairman and they placed in his hands $100,000 which he expended. How much more was expended by committee out of the state no one will ever know. La Follette was unable to go upon the stump and had no money to expend for a campaign. The citizenship of Wisconsin showed that it was not purchasable and that the birthright of citizenship was worth more than a mess of pottage. Loyal citizens, Democrats and Republicans, said that the battle was the people's battle, and without hope of reward, threw themselves into the contest and La Follette and Progressive principles triumphed.

Wisconsin gave a majority to La Follette of over 100,000 at the primaries. Waupaca county did its share and stood as one of the banner counties in the state, notwithstanding the fact that Mr. Putnam, the candidate for county judge, received $385.67 to defeat La Follette and the principles he stood for.

Do you think that selling one's influence for $385.67 is a good qualification for a high position like that of county judge? In days gone by, the receiving of 30 pieces of silver forever and rightfully condemned a man. Times have not so changed that receiving $385.67 for the purpose of defeating a man who was championing the people's cause ought to be a virtue or a qualification for office.

We do not know that these sums amounting to $385.67 were all the amounts that were received by Mr. Putnam in the eventful campaign of 1910. Had all of the men who received parts of the Connor slush fund been proud of the part they took in that campaign, we do not imagine that they would have been so quiet about the filing of their expense account which was dug up by an ever vigilant newspaper reporter and first published by the Milwaukee Journal, December 16, 1910.

A county judge should be a man of the highest character and integrity, with a reputation above reproach. W. M. Emmons is such a man. He was born and raised on a farm in the town of Dayton, Waupaca county, and has lived in Waupaca county all his lifetime with the exception of about four years. We have never heard a single word or whisper against his high character and we believe the people will find him a faithful public servant if they elect him as their county judge.”

The defendant by answer denied all malice and claimed that the article was conditionally privileged. They admitted that there was one error in the article, namely, the statement of $200 paid to G. H. Putnam for the organization of Manitowoc county contained in the account of the treasurer of the Republican state committee filed in the office of the register of deeds of Fond du Lac county; but they alleged that the information as to this item was obtained from the previous publication thereof in other newspapers, that the same was undenied by the plaintiff, and was honestly believed by the defendant to be true. The answer also contained an allegation that the plaintiff received some of the items of money named in the article and distributed some portion thereof, and did not disburse for legitimate campaign expenses all of such sums so received by him. This allegation was treated as a partial but not a complete defense.

The jury returned a verdict for the defendant, and the plaintiff appeals from judgment on the verdict.

Martin, Martin & Martin, of Green Bay, for appellant.

Browne, Browne & Smith, of Waupaca (Kreutzer, Bird, Rosenberry & Okoneski, of Wausau, of counsel), for respondents.

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

[1] A number of errors in the charge of the court are alleged, but it seems to us that we can attain greater clarity by treating the case abstractly and stating the general principles applicable, than by taking up the alleged errors in detail.

The occasion was one of conditional privilege. The plaintiff was a candidate for the office of county judge, a position where integrity, incorruptibility, and judicial ability are absolute essentials. By his candidacy he placed his character in these respects before the people for consideration and discussion. One voter might in good faith and without malice place before other voters fair criticism of or comment upon the plaintiff's acts in these respects without liability, but he could not make libelous statements of fact which were false any more than he could if no such candidacy existed, nor could he indulge in insult or contemptuous phrase. A local newspaper might do the same things and no more. But while the privilege is thus confined to fair comment or criticism upon facts, the comment may doubtless be caustic and severe if the facts warrant it. Such has been the position of this court in the case of criticism of public officers. Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111;Williams v. Hicks Co., 159 Wis. 90, 150 N. W. 183;Leuch v. Berger et al., 155 N. W. 148 (present term). The same rule has also been applied to publications concerning candidates. Ingalls v. Morrissey, 154 Wis. 632, 143 N. W. 681, Ann. Cas. 1915D, 899.

[2] It is recognized that there is a disagreement in the authorities on the question whether false statements concerning candidates for office made without malice and in good faith are privileged. In some jurisdictions it is held that all matters true or false having a bearing on the fitness of a candidate may be published without liability if it be shown that they were published without malice in good faith, and in the honest belief that the facts stated were true. Briggs v. Garrett, 111 Pa. 404, 2 Atl. 513, 56 Am. Rep. 274;Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. (N. S.) 361, 130 Am. St. Rep. 390. We deem the other view, however, to be supported not only by our own decisions, but by the better reason and by the great weight of authority in other courts. Newell, Slander and Libel (3d Ed.) §§ 633-636; 25 Cyc. 402-405, and notes; Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201.

[3] We do not overlook sections 94--17 and 94--38 of chapter 650, Laws of 1911 (now section 12.17, Statutes 1915), which provide that...