Cottrill v. Cramer , 43 Wis. 242 ( 1877 )

Lyon, J.

Although several grounds of demurrer are alleged, the real question to be determined on this appeal is, Does the complaint state facts sufficient to constitute a cause of action? The learned counsel for the defendants argued “with ability and earnestness, that the article, the publication of which is complained of, is a fair and honest criticism of public speeches delivered by the plaintiff, and hence that it is privileged. This argument assumes that the plaintiff delivered speeches of the character imputed in the article, an assumption which is expressly negatived in the complaint. The article may be privileged, but it does not yet appear that it is so. On this appeal we cannot look beyond the complaint, and certainly the complaint does not show the privilege, but quite the reverse. When it shall be proved or admitted that the plaintiff made public speeches of the character imputed in the article, and not until then, the question whether the article is a fair and honest criticism of those speeches, may be presented. And even then the question will probably be for the jury to determine, under proper instructions.

The obvious tendency of some portions of the article is to vilify the plaintiff, and expose him to hatred, contempt and ridicule. Within all of the authorities, those portions are prima facie libelous. If facts exist which justify the publication of the article, they do not appear from the complaint, and to be available must be averred and proved.

It was said in the argument, that many extrinsic facts are stated in the complaint by way of innuendo only. There is some ground for this criticism, for the complaint is prolific of imnuendo and comparatively barren of averment. It is said in Weil v. Schmidt, 28 Wis., 137 (and the proposition is elementary), that “ it is not the office of an innuendo to enlarge the meaning of the words, but to point their meaning to some precedent matter, expressed or necessarily understood.” p. 140. But, rejecting superfluous innuendoes, we think the complaint will still be sufficient.

We conclude that a cause of action is stated in the complaint, and that the demurrer was properly overruled.

By the Court. — Order affirmed.