Singler v. Journal Co.

• Decision Date: 30 April 1935
• Citation: 260 N.W. 431,218 Wis. 263
• Parties: SINGLER v. JOURNAL CO. ET AL.
• Court: Wisconsin Supreme Court

218 Wis. 263

260 N.W. 431

SINGLER

v.JOURNAL CO. ET AL.

Supreme Court of Wisconsin.

April 30, 1935.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Circuit Judge.

Affirmed.

This was an action commenced on May 23, 1933, by Walter M. Singler, plaintiff, against the Journal Company and Joe D. Beck, defendants, to recover damages for alleged defamation. The defamatory statements are alleged to have been made during the course of a broadcast by the defendant Beck over the radio station of the defendant the Journal Company. The action was tried to the court and a jury, and a special verdict submitted. The first question required the jury to find whether a person of average intelligence and comprehension would have understood, upon hearing the broadcast, that it was charged that the plaintiff was guilty of the crime of extortion by means of levying tribute upon farmers delivering milk into the city of Milwaukee and other centers. The jury answered this question “No.” The second question was only to be answered in case the first question received an affirmative answer, and inquired as to the truth of the statement. This question was left unanswered. In the third question the jury was asked whether, considering the radio broadcast as a whole, the use of the terms “racketeer” and “Chicago gangster,” or either of them, in their commonly accepted meaning, and as applied to the plaintiff, would naturally tend to bring the plaintiff into shame, humiliation, or disgrace. The jury's answer to this question was “No.” The fourth question depended for answer upon an affirmative answer to the third question, inquired as to the truth of the reference, and was left unanswered by the jury. In the fifth question the jury was required to find whether the radio broadcast, taken as a whole, constituted a fair comment on the acts of the plaintiff in his capacity as president of the Wisconsin Co-operative Milk Pool. The answer was “Yes.” The jury assessed compensatory damages at $10,000, found that neither the defendant Beck nor the defendant the Journal Company was actuated by malice in delivering and broadcasting the address, respectively, and found no punitory damages. The court ordered judgment upon the verdict, in favor of the defendants, and this judgment was entered on June 16, 1934. Plaintiff appeals. The material facts will be stated in the opinion.Rubin & Zabel, of Milwaukee (W. B. Rubin and Michael Levin, both of Milwaukee, of counsel), for appellant.

Miller, Mack & Fairchild, of Milwaukee, for respondent Journal Co.

James E. Finnegan, Atty. Gen., and H. H. Thomas, of Madison, for respondent Joe D. Beck.

WICKHEM, Justice.

A voluminous record is presented upon this appeal, and a short statement of the background of this controversy may assist in understanding the legal problems presented.

[1] At the times in question, plaintiff was president of the Wisconsin Co-operative Milk Pool. He was a farmer, 38 years of age, living at Shiocton, Wis. He joined the Wisconsin Co-operative Milk Pool as a member on February 17, 1932, and was elected its president in June of that year. The organization of the milk pool was one of the immediate results of dissatisfaction upon the part of dairy farmers with existing practices connected with the distribution of milk. It was the position of plaintiff and those associated with him in the Wisconsin Milk Pool that the milk market was under the control of a combination of large dairy companies to whom the farmers must sell their milk, and who engaged in practices which need not here be reviewed, but which resulted in forcing the farmer to sell his milk at less than the cost of production. Upon his election as president of the pool, plaintiff became active in the promotion of his views as to the causes of the farmers' difficulties and the proper remedies therefor. The balance of plaintiff's efforts were expended in increasing the pool's membership. He was in frequent contact with the state department of agriculture and markets, which consists of three commissioners. The defendant Beck was and is one of the commissioners.

During the course of this preliminary work plaintiff came to the conclusion that the department of agriculture and markets, organized under three heads, was inefficient and of little use to the farmers, and that a one-man commission should be substituted. By February, 1933, the membership of the milk pool had grown to 8,000 members, and its officials were of the view that effective relief for dairy farmers could only be obtained by withholding their product from the market until such time as a fair price would be offered for it. In other words, the principle of the strike as theretofore applicable to industrial disputes was to be applied to the relief of the dairy farmers. In accordance with this view, a strike was authorized by the pool, to take effect December 15, 1932. This was postponeduntil February, 1933, when it was carried out, the strike ending February 22, 1933. On May 13, 1933, a second strike was called to enforce demands and promises made in the settlement of the February strike and claimed to have been unfulfilled. During the course of the February strike the contract referred to in defendant's radio broadcast was drafted. During the strike the pool had a bargaining committee, which negotiated with several independent milk dealers for the purchase of milk from pool members at $1.40 per hundred, this being the price claimed by the pool to be fair. It is plaintiff's claim that the contract in question had for its foundation the idea that since all of the pool members could not sell their milk due to the small number of independents who could be contacted, the farmers who could sell milk at $1.40 per hundred should help equalize the loss of the farmer who was keeping or dumping his milk. Plaintiff claims that to carry out this idea the contract in question was conceived and drafted, but never executed. This contract contemplated three parties: First, the milk pool; second, the local milk drivers' union; and third, whatever milk distributors the contract should ultimately be made with. The distributors agreed to buy milk at the farms of the pool members in good standing, and to pay therefor $1.40 per hundred. Payments were to be made 70 cents to the farmer delivering the milk, and 70 cents “to go to the Milk Pool payable to the Negotiation Committee, A. H. Christman, Chairman, and Oscar Klumb, Treasurer.” The contract appears to have been applicable to the period of the holiday or strike.

The defendant Beck, according to plaintiff's claim, was opposed to a one-man department of agriculture; opposed to changing the base and surplus practices, to which the pool objected, and while favorable to the pool's activities during its earlier months, is claimed to have been opposed to them, at least when the strike was ordered. On May 13th, as heretofore stated, the second strike was called.

The radio broadcast here involved was made on May 15th, over the Journal Company's broadcasting station, WTMJ, a station of state-wide sending capacity. The portion of the radio address which is claimed to be defamatory is as follows:

“Talk about ‘racketeers.’ The Chicago gangsters have nothing on Singler. The Chicago gangsters admit farmers' truckloads of milk, averaging around 4,000 pounds, into Chicago for $8.00 a load. The tribute Mr. Singler would levy on that load would be $28.00. That tribute levied on all the milk going into Milwaukee would amount to $7,000 per day, or over two and a half million dollars per year. But a small sum like that would not satisfy Mr. Singler. He says, according to press reports, that his first step is to get control of all the fluid milk. At 70 cents per 100 pounds, this would increase his income to about $7,000,000 per year. But he isn't even satisfied with that. He now says he is going to include all farm products. If he would be willing to divide them with the farmer on the same 50-50 basis as he proposes to do with milk, his income would be around $100,000,000 a year, because the gross income of the farmers of Wisconsin last year amounted to about $200,000,000. He may conclude to do that. But why stop with Wisconsin? Why not include the earth, and then, like Alexander of old, sit down and weep because there are not other worlds to conquer?”

Since the jury have found that the statement quoted would not be understood by persons of average intelligence and comprehension to charge plaintiff with the crime of extortion by means of levying tribute upon farmers, the first question to be determined is whether this portion of the address so plainly and unambiguously defames plaintiff in this respect as to constitute libel or slander per se. Due to the fact that this was a radio broadcast, it is a serious question whether the case is governed by the law of libel or that of slander. Sorensen v. Wood, 123 Neb. 348, 243 N. W. 82, 82 A. L. R. 1098;Miles v. Louis Wasmer, Inc., 172 Wash. 466, 20 P.(2d) 847;Coffey v. Midland Broadcasting Co. (D. C. Mo.) 8 F. Supp. 889. In view of our conclusion that, considered as libel, the most that plaintiff can establish is that there was a jury question as to the defamatory character of the broadcast, we do not find it necessary to determine this question.

[2][3][4] So far as its procedural aspects are concerned, the law is not in question. If the meaning of the publication is clear and unambiguous, the issue is for the court. Williams v. Hicks Printing Co., 159 Wis. 90, 150 N. W. 183;York v. Cole, 190 Wis. 179, 208 N. W. 944;Arnold v. Ingram, 151 Wis. 438, 138 N. W. 111, Ann. Cas. 1914C, 976;Leuch v. Berger, 161 Wis. 564, 155 N. W. 148;Putnam v. Browne, 162 Wis. 524, 155 N. W. 910, Ann. Cas. 1918C, 1085. If it is ambiguous, the issue is for the jury. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. Rep. 511;Dabold v. Chronicle Pub. Co., 107 Wis. 357, 83 N. W. 639; Leuch v. Berger, ...