Williams v. Journal Co.
| Decision Date | 07 March 1933 |
| Citation | 247 N.W. 435,211 Wis. 362 |
| Parties | WILLIAMS v. JOURNAL CO. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.
Action by Clifton Williams against the Journal Company. From an order sustaining motions to strike out entire and separate defenses to the fourth and fifth causes of action as demurrers to such causes of action, plaintiff appeals, and defendant by notice requests a review of the order so far as it refused to sustain plaintiff's motions as demurrers to other causes of action.--[By Editorial Staff.]
Affirmed.
Action for libel. Plaintiff's complaint purports to allege eight causes of action. Defendant answered, and plaintiff moved to strike out certain of the allegations in the answer, which were pleaded as entire and separate defenses to the fourth and fifth causes of action, on the ground that those allegations did not constitute defenses in bar to those causes of action. The circuit court held that those motions were in legal effect demurrers to those defenses, and as such reached back so as to test the sufficiency of the facts alleged to constitute the fourth and fifth causes of action, in answer to which those defenses were pleaded. Thereupon the court sustained those motions as demurrers to the fourth and fifth causes of action. Motions by plaintiff to strike out other parts of defendant's answer and to make other parts thereof more definite and certain were denied. Plaintiff appealed from the order sustaining the motions as demurrers to the fourth and fifth causes of action. Defendant by due notice requested a review of the court's order, in so far as it failed to sustain plaintiff's motions as demurrers to the other causes of action.Gold & McCann, of Milwaukee (W. G. Sullivan, of Milwaukee, of counsel), for appellant.
Miller, Mack & Fairchild and J. G. Hardgrove, all of Milwaukee, for respondents.
[1][2] The complaint has seven causes of action for libel based on seven newspaper articles published by the defendant, and an eighth cause of action for conspiracy to libel based on those articles and two others. The defendant answered, setting up numerous separate defenses in bar, and also various matters in justification and in mitigation as to each cause of action. Plaintiff in nine motions moved, on various grounds, to strike out some of the allegations of the answer, and also to have other portions of the answer made more definite and certain. Several of those motions were to strike out certain allegations, which were pleaded as constituting in their entirety a separate defense in bar, on the ground that those allegations considered as a unit did not constitute, as was stated in the answer, defenses in bar to the fourth and fifth causes of action. The learned circuit judge held that the motions which challenged the sufficiency of certain sets of facts, which were pleaded as constituting entire and separate defenses to the fourth and fifth causes of action, respectively, were in legal effect demurrers to those defenses, and as such reached back so as to test the sufficiency of the fourth and fifth causes of action to which those sets of facts were pleaded as defenses in bar. That ruling is not challenged now. A motion to strike out in its entirety a separate defense is, in its legal effect, a demurrer. Wisconsin Face & Fire Brick Co. v. Southern Surety Co., 188 Wis. 383, 387, 206 N. W. 204;Gilbert v. Hoard, 201 Wis. 572, 230 N. W. 720. Consequently it was proper to apply the rule that on demurrer the court will consider the whole record and give judgment for the party who thereon appears entitled to it, unless the defect in the complaint is of such character that it may be waived by answering. 1 Chitty on Pleading (8 Am. Ed.) *p. 668; Bryant's Wis. Plead. & Practice (2d) § 343; State ex rel. Leiser v. Koch, 138 Wis. 27, 119 N. W. 839;Town of Whitewater v. Richmond, 204 Wis. 389, 393, 235 N. W. 773; Wisconsin Face & Fire Brick Co. v. Southern Surety Co., supra.
[3] However, the defendant contends on its notice to review that the rule should have been applied also to certain other motions by the plaintiff to strike certain allegations, which are only part of the allegations pleaded as constituting in their entirety a separate defense, and which plaintiff moved to have stricken because they do not “either alone or in connection with other allegations of said answer” set forth facts sufficient to constitute a defense to the eighth cause of action. In that connection defendant urges that, because such other motions challenge the sufficiency of some of the allegations as matters of defense to the eighth cause of action, and that cause of action is based on all of the articles on which the first seven causes of action are based, in conjunction with two other articles, the legal effect of such other motions is likewise a demurrer reaching back to test the sufficiency of the allegations of each of the eight causes of action. No precedent has been cited in support of that contention. Those other motions do not challenge the sufficiency of the allegations, which are pleaded in their entirety, as a separate defense, and plaintiff's motion challenges their sufficiency solely as constituting a defense to the eighth cause of action. Although some of the matters thus alleged are pleaded as in mitigation of damages, under any of the first seven causes of action, and by reason of the publication of an article complained of in the eighth cause of action, they are challenged as insufficient to constitute a defense only in relation to the eighth cause of action. On the one hand, those other motions do not challenge the sufficiency of allegations pleaded as a defense in bar, in its entirety; and, on the other hand, the challenge as to insufficiency is confined to the eighth cause of action. Under those circumstances, the court did not err in refusing to treat those other motions as demurrers to defenses set forth in answer to the other causes of action than the fourth and fifth of the complaint, and defendant is entitled to no relief on its notice of a review of the order appealed from by plaintiff. Gilbert v. Hoard, supra.
[4] On plaintiff's appeal, error is assigned because of the court's refusal to grant plaintiff's motions to strike, and to make more definite and certain certain allegations of the answer. However, plaintiff concedes that orders denying such motions are not appealable. Plaintiff is not entitled to appeal from and have a review of those denials at this time. Dewald v. Dewald, 89 Wis. 353, 62 N. W. 175; Gilbert v. Hoard, supra.
Plaintiff also assigns as error the court's ruling that the facts alleged in the fourth and fifth causes of action were insufficient upon demurrer. The fourth cause of action is based upon the publication on May 8, 1929, of alleged false and defamatory matter in a newspaper article which is as follows:
“Records Back Jury Findings.
Although the proceedings of a grand jury must remain secret and no names are mentioned, because of legal restrictions, in the report of the jury returned to Judge George A. Shaughnessy Tuesday afternoon, it has been possible to investigate public records and obtain facts concerning practically all of the activities that the jury so severely condemned. * * *
The report says:
The records show Clifton Williams, Special Assistant City Attorney, at a salary of $1000 a month accepted fees of some $800 from the Milwaukee Road and appeared for the road in court in several instances in connection with the North Avenue terminal. The record also shows that the road is now demanding that the Railroad Commission refund 25 per cent of the amount paid to Mr. Williams. * * *”
It will be noted that a portion of that article is quoted from a report of a grand jury. The balance thereof comments on that report, and also mentions plaintiff and his receipt of compensation for services as attorney for the city, and the railroad. By way of inducement, in connection with the fourth cause of action, there are allegations to the following effect: That on May 15, 1924, plaintiff, as an attorney at law,...
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