Helmicks v. Stevlingson , 212 Wis. 614 ( 1933 )

Fritz, J.

Appellant, in demurring to the complaint on the ground that it did not state sufficient facts to constitute a cause of action, relies, among other contentions, upon the proposition that the statement complained of is not libelous as to plaintiff because, as there is no reference made therein to an ascertained or ascertainable person, it does not sufficiently identify the plaintiff., In support of that contention defendant relies upon the rule that—

“In every action for defamation, two things are necessary :

“(1) A defamation apparent from the words themselves, for no innuendo can alter the sense.

“(2) Certainty as to the person who is defamed, for no innuendo can render certain that which is uncertain.” New-ell, “Slander and Libel” (4th ed.) § 200.

In applying that rule this court has said:

“It is well settled that defamatory words must refer to some ascertained or ascertainable person and that person must be the particular plaintiff. Statements are not libelous unless they refer to some ascertained or ascertainable person.” Schoenfeld v. Journal Co. 204 Wis. 132, 136, 235 N. W. 442; Williams v. Journal Co. 211 Wis. 362, 247 N. W. 435, 439.

In the case at bar the words complained of as published on November 1, 1932, were, “Bank loaned to death by former cashier.” Plaintiff' alleges that defendant thereby intended “to charge that the Bank of Deerfield had been closed to its death by virtue of the acts of plaintiff, he being the only and former cashier of the Bank of Deerfield since its consolidation;” and, in that connection, plaintiff also alleges “that thereafter the said defendant admitted to the said plaintiff that the said words had been by him uttered and that it was the said plaintiff that he, the said defendant, intended to refer to by virtue thereof.” However, it also appears from allegations in plaintiff’s complaint that the Bank of Deerfield was in existence since 1905; that it was only from October, 1930, when another bank was consolidated with the Bank of Deerfield and the business was continued under the latter name, until that bank closed in January, 1932, that plaintiff was cashier of that bank; and also that in January, 1932, the defendant was employed by that bank and has been cashier thereof.

Manifestly, in view of all of the facts alleged as stated above, the words “former cashier” are applicable tO' other persons than solely the plaintiff. As far as anything which is stated in the published words is concerned, the words “former cashier” are as applicable to each and every other person, who functioned as cashier of the Bank of Deerfield at any time since it came into existence in 1905, as they are to the plaintiff, who was its cashier for only fifteen months of that period of twenty-seven years. The fact that plaintiff may have been, as is alleged in his complaint, the only and former cashier of that bank since its consolidation does not confine the application of the published words to him. There is nothing in the words as published that limits their meaning to loans made since the consolidation of the bank, or by its cashier since its consolidation. Neither can the omission of the published words to refer to the plaintiff with the particularity necessary, as a matter of law, to' render them libelous as to plaintiff, be supplied by the existence of any unpublished intention on defendant’s part to have the words considered applicable to the plaintiff. Consequently, defendant’s admission solely to plaintiff that defendant intended by the published words to refer to plaintiff does not constitute a publication to some third party, which must occur before actionable injury to reputation results. As is said in Newell, Slander and Libel (4th ed.) p. 219: “There is no publication when the words are only communicated to the person defamed, for that cannot injure his reputation.”

" It follows that defendant’s demurrer should have been sustained.

By the Court. — Order reversed, with directions to enter an order sustaining defendant’s demurrer to the complaint.