Gagen v. Dawley
Gagen v. Dawley
Opinion of the Court
Upon defendants’ appeal no new questions are presented. The published articles were clearly libelous. Williams v. Hicks P. Co. 159 Wis. 90, 150 N. W. 183; Leuch v. Berger, 161 Wis. 564, 155 N. W. 148, and cases cited. And, as the jury .found, they unmistakably referred to plaintiff.
The court properly refused to permit defendants to justify by proof of current opinion or general rumor that plaintiff did not pay his bills. Haskins v. Lumsden, 10 Wis. 359; Earley v. Winn, 129 Wis. 291, 302, 109 N. W. 633. The statements in the articles to that effect did not purport to be made upon information, opinion, or rumor, but upon positive knowledge.
The charge was full and fair and correctly stated the law of the case. The defendants have excepted to a portion of a sentence and-claim such portion is erroneous. The court charged r
“The paper’s function is to guide, educate, and inform its readers, to stand for truth and to condemn error, and never to maliciously accuse falsely, or blacken one’s character, or expose him to public hatred, disgrace, contempt, or ridicule, (nor produce injury to him in his business, trade, or profession. Those published articles here in evidence have done some of those things if not all.)”
The part in parentheses is excepted to and it is said to be erroneous because it tells the jury that plaintiff was injured in his business, trade, or profession when it is claimed the evidence showed he had none. It is obvious that the whole charge quoted does not so tell the jury. It tells them that the articles in question have done some of the things men
The evidence shows that the defendant Dawley was the •owner and publisher of the paper, but that he had turned it •over to Fessenden; his son-in-law, to edit and had given him the earnings of the paper for some time. It appears, how■ever, by Dawley’s own testimony that he exercised supervision •over the paper and was in the office nearly every day or so; that he gave instructions as to its policy and cautioned Fes-senden against inserting libelous articles. Under the rule announced in Smith v. Utley, 92 Wis. 133, 65 N. W. 744, and Leuch v. Berger, 161 Wis. 564, 155 N. W. 148, he was properly held liable. The defendants will take nothing upon their appeal.
There is some basis for the claim that the trial court reduced the compensatory damages from $500 to $250 on the theory that since, as he understood, the jury believed that each defendant would be required to pay only one half of .•$500, and since Dawley alone was financially responsible, he ■should be required to pay only what the jury is claimed to have intended. There is nothing, however, in the record to ;show the jury entertained suph an idea, and even if they did it would have been an erroneous one. The question they were called upon to decide was, how much damage had plaintiff sustained, not which of the defendants was able to pay it nor how much they or either of them were able to pay. But whatever may have been the reason the reduction was unjustified. Plaintiff was a married man forty-six years old •and had lived with his wife in the community for ten years .and was engaged at the time of the trial in the abstract and insurance business. lie had been municipal court reporter, .and had been a member of the Democratic county committee, .acting as secretary for twelve years. No justification of any
By the Court. — The defendants will take nothing upon their appeal. Upon plaintiff’s appeal the order is reversed, .and the cause remanded with directions to enter judgment for plaintiff upon the verdict. Plaintiff is entitled to his •costs in this court upon both appeals, hut only one attorney’s fee of $25 will he taxed.
Reference
- Full Case Name
- Gagen v. Dawley and another, Respondents Same v. Same
- Cited By
- 2 cases
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- Published