Schoenfeld v. Journal Co.

• Decision Date: 10 March 1931
• Citation: 235 N.W. 442,204 Wis. 132
• Parties: SCHOENFELD v. JOURNAL CO.
• Court: Wisconsin Supreme Court

204 Wis. 132

235 N.W. 442

SCHOENFELD

v.JOURNAL CO.

Supreme Court of Wisconsin.

March 10, 1931.

Appeal from a judgment of the Circuit Court for Price County; G. N. Risjord, Circuit Judge.

Action by B. F. Schoenfeld against the Journal Company. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action for libel commenced February 19, 1930. From a judgment for the defendant entered on the 2d day of July, 1930, the plaintiff appealed.

The plaintiff is a minister of the gospel and was, on and prior to the 7th day of February, 1930, the pastor of the First Congregational Church at Park Falls, Wis. On the 7th day of February, 1930, defendant published in its paper, the Milwaukee Journal, the following article:

“Warrant for Pastor in Fur Thefts.

Church Organ Cached Loot at Park Falls.

Minister Avers Pelts were Legally Caught, Offering to Produce the Trapper.

By Special Correspondent of the Journal,

Park Falls, Wis.--Thefts of fox and otter skins which had been concealed in the organ of the Park Falls Congregational Church has led to the issuance of a warrant charging the pastor, the Rev. B. F. Schoenfeld, with possession of illegal furs.

The warrant, issued by Police Justice M. D. Hinshaw here, is in the possession of Conservation Warden Allen Hanson, Ladysmith, for service.

Claim Furs Legal.

Mr. Schoenfeld said Thursday that the furs on which the charge was based were legally caught and that he could produce as a witness the man who trapped them.

The arrest of Ray Sugrue, part owner of a Ladysmith confectionery store, for breaking into a warehouse at Ladysmith, resulted in the confession that he had stolen the furs from the church organ. Sheriff E. Wilson, of Rusk County informed Mr. Schoenfeld and also informed Warden Hanson.

Found in Organ.

Sugrue told Warden Hanson and later repeated the major details in an affidavit on file with Justice Hinshaw--That he got permission to practice on the church organ and that on the afternoon of Sunday, Nov. 17th, he opened the organ to show the mechanism to two companions and discovered a quantity of furs which he estimated to be worth $2,000 or $3,000. He said in his affidavit that he took three fox skins then and returned with four companions the next night to get some more. They found only two other hides left in the organ.

Warden Hanson, upon learning from Sugrue and the other four men that the otter hides were dry, obtained the warrant for Mr. Schoenfeld. The otter season did not open until November 15th and the Warden's contention is that otter hides taken after the opening of the season could not be dry on Nov. 18 when the two skins were stolen from the organ.

Taken to Police Station.

Sugrue's affidavit said that he was taken to the Park Falls city hall by Police Chief James McDonald and that Mr. Schoenfeld was there and told him that he would be arrested as a thief if he did not pay $110 for the hides and $120 more to cover ‘detective fees.’

Mr. Schoenfeld said Thursday that the charges were false. He said that he had been buying fur for some time and that the organ had seemed a safe hiding place to prevent robbery. He said that he bought the otter hides Nov. 17th and knew that they had been taken after the opening of the season because one of them was skinned before his eyes. At the chief's office, he said, he merely asked for his furs back or their value. He declared the affidavit was false if it said he asked ‘detective fees.’

‘Framed’ Pastor Says.

‘I knew this was coming,’ said Mr. Schoenfeld. ‘A warden told me three weeks ago I was going to be framed. This is malicious slander. They framed on me once before and I waived examination and paid $150 just to avoid publicity. I didn't plead guilty or not guilty, I just handed over the money.’

The minister referred to his conviction in December, 1928, on a charge of illegal possession of furs brought by Warden I. W. Boomer of Oshkosh, Wis.”

The particular language alleged to be libelous is the following which appeared in the headlines: “Warrant for Pastor in Fur Thefts. Church Organ Cached Loot in Park Falls.” The plaintiff claimed that the portions of the headlines just quoted, when read by a person of average intelligence, would convey the meaning that the plaintiff was charged with the crime of larceny of furs, that a warrant for his arrest upon such charge had been issued, and that the plaintiff had hidden or secreted such furs in the church organ in his church at Park Falls.

The defendant denied that the language complained of was susceptible of the meaning alleged by the plaintiff, when read in connection with the entire article, and alleged that, prior to the 7th day of February, 1930, a warrant had been issued which charged the plaintiff with having possession of furs taken from animals which had been illegally trapped. Trial was had, and the jury found that a person of average intelligence, reading the entire article, would not naturally understand that the plaintiff was charged therein with the crime of larceny--that is, of stealing furs--that a warrant for his arrest upon such charge had been issued, and that he had hidden or secreted such stolen furs in the church organ in his church at Park Falls.

A question as to damages was submitted to the jury and answered as follows: “Question: If for any reason it should be determined that the article in question constitutes a libel of the plaintiff, then at what sum do you assess plaintiff's damages: (Answer) $15,000.00.”

After verdict, the plaintiff moved in the alternative for judgment on the undisputed evidence, for judgment notwithstanding the verdict, to change the answer of the jury from “No” to “Yes,” and for judgment on the verdict as so modified, and, finally, for a new trial. All of the motions so made were overruled, and judgment entered for the defendant.

W. K. Parkinson, of Phillips, for appellant.

Miller, Mack & Fairchild, and Paul R. Newcomb, all of Milwaukee, for respondent.

NELSON, J.

The plaintiff contends that the court erred in refusing to award judgment for the plaintiff upon the undisputed evidence for the amount of damages assessed by the jury, notwithstanding the verdict of the jury which found the entire article as published not libelous. The basis of plaintiff's contention is that the language found in the headlines, “Warrant for Pastor in Fur Thefts. Church Organ Cached Loot at Park Falls,” was libelous per se and was not a fair index of the concededly privileged article following.

While no warrant charging plaintiff with larceny had been issued, it is undisputed that, prior to the 7th day of February, 1930, a warrant had been issued which charged the plaintiff with illegal possession of furs.

[1][2] The unsoundness of plaintiff's contention is apparent when the language complained of, standing alone and apart from the...