Kraus v. Sentinel Co. , 60 Wis. 425 ( 1884 )

Taylor,- J.

This is an action for libel. The appellant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint is of great length, covering thirty-four pages of the printed case,- a large portion of which is composed of innuendoes, many of which are of doubtful utility, and unnecessary to a full understanding of the meaning of the libelous publication. It would seem that the demurrer was aimed at .the innuendoes rather than at the text of the publication. After a careful reading of the publication, which is the foundation of the action, we are satisfied that it is of a grossly libelous character if untrue. Its mere production as evidence, and proof of publication, would establish a cause of action against the appellant.

The fact, if it be a fact, that some of the voluminous innuendoes attribute a meaning to the words published which they will not bear, is no ground for sustaining a demurrer to the complaint for the reason that it does not state facts sufficient to constitute a cause of action. The innuendoes which are objectionable may be treated as sur-plusage, and the letter of the publication still be libelous. The rule is undoubtedly well stated in Fry v. Bennett, 5 Sandf., G5, where Justice Duer, speaking for the court as to the office of the innuendo, says: “ If it enlarge the sense materially, which can only happen when the sense which it attributes to the words is that which alone renders them actionable, the proper course of the defendant is to demur; and if the court be of the opinion that the innuendo is not justified by the antecedent facts to which it refers, and that, rejecting it, the words are not actionable, it is certain that the judgment will be rendered in his favor. . . . When the words, although their sense may be enlarged by the innuendo, are plainly actionable upon their face, a denial of the truth of the innuendo would be frivolous and nugatory. As, rejecting the innuendo, the cause of action would remain, the denial would be immaterial as an issue of fact, and groundless as an issue of law.” Admitting that the innuendoes in the complaint in the case at bar extend the meaning of the words of the publication beyond their fair and proper construction, such innuendoes do not make the complaint subject to demurrer for the reason that it does not state facts sufficient to constitute a cause of action, if the words of the publication are actionable in themselves, rejecting the innuendoes. As said above, we are clearly of the opinion that the publication is libelous and actionable on its face without the aid of the innuendoes.

By the Gourt.— The order of the circuit court is affirmed, and the cause remanded for further proceedings.