Bowe v. Rogers

Cole, C. J.

We do not see that the defendants are in a position to object that the circuit judge denied the motion to set aside the verdict and grant a new trial pro forma. If they were entitled to the exercise of any other judicial discretion and judgment on the motion than was actually given it by the circuit judge, they should have insisted upon such exercise when the motion was decided. As the case stands now, we must treat the order as though the motion were decided after argument, on full consideration, and denied for reasons which were satisfactory to the conscience and judgment of the circuit judge.

*601 But the learned and accomplished counsel for the defendants insists that the circuit court erred in refusing to set aside the verdict as being contrary to the evidence. He claims that there was a clear and decided preponderance of testimony to sustain the defense; that the bias, contradictions and falsehood of the principal witnesses introduced on the part of the plaintiffs are so apparent that the jury were not warranted in believing their statements. "We do not think there is any ground for saying in this case — if, indeed, it is our province to say it in any case — that the jury should not have given credit to the statements of witnesses who came before them and testified in their presence. It is common experience that the testimony of a witness on paper may sometimes seem contradictory and untrustworthy, yet the appearance of the witness on the stand, his fair, candid manner of testifying, may lead the mind to attach much credit to what he says. Of course, a case might be imagined where it would be the duty of the appellate court to declare that the testimony of witnesses to certain facts was so unsatisfactory, so contradictory and improbable, as to be self-destructive, and have no probative force as evidence. But this is not such a case. Here the truth of the alleged libel necessarily involved an inquiry as to the quantity of materials furnished by the defendant Mrs. Rogers to the plaintiff Mrs. Rowe for the purpose of making the dress, and the quantity of material returned. On these points the witnesses on the one side and the other directly contradict each other. It was for the jury to decide upon these conflicting statements, and determine which set of witnesses was the more worthy of credit. We do not feel justified in saying that the jury should not have believed the testimony of Mrs. Rowe, and the statements of witnesses which tended to support her. This would be dangerous ground to go upon; for it is obvious that it was for the jury to judge as to what facts were established by the evidence.

It is said the truth of the chai’ge in the alleged libel is es *602 tablished by the defease, if it be proved that a substantial or material portion of the goods mentioned in the hand-bill were taken or'retained bj Mrs. Bowe. Concede this to be so; still, Mrs. Bowe positively states that she returned all the material received which she did not use in making the dress. She claims that the dress was changed or altered after she returned it, and some of the material taken out. Witnesses for and against that theory were produced and sworn on the trial. It was for the jury to say what the real fact was in that regard.

It is further insisted that the court erred in refusing to set aside the verdict upon the ground that the damages are excessive. This was an action where exemplary or punitory damages could be given, under our decisions, if the acts of the defendants in the printing and publication of the libel were wanton and malicious. Unless the damages awarded by the jury are so great as to show that they were governed by improper motives in fixing the amount, this court cannot interfere on that ground. That rule has been often affirmed in this court. Birchard v. Booth, 4 Wis., 67 , and Cramer v. Noonan, id., 231, and cases cited in the notes. There were some circumstances of aggravation attending the ‘publication of the libel, from which the jury might have inferred express malice, and a purpose to injure the plaintiff Mrs. Bowe; as, for example, its distribution indiscriminately to the people as they came out of the church at the time of the ecclesiastical trial, as testified to by one witness. But, as the damages were very much in the discretion of the jury, we see no sufficient reason for interfering with them.

The circuit court charged that the publication, if false, was libelous jper se. It is claimed that this was error. But it seems to us there can be no doubt as to the character of the publication, and that the court put the proper construction upon its language. The question whether the words imputed to Mrs. Bowe a criminal offense was one for the court. Filber v. Dauterman, 28 Wis., 134 . It is unnecessary to go into *603 any analysis of the publication. The, charge of retaining material which was furnished for the dress is clearly made or implied. In the last paragraph the crime of larceny is indi- • rectly imputed to Mrs. Bowe. That such a charge is necessarily injurious, and occasions damage and degradation in society to any respectable woman, is too plain for discussion. Cary v. Allen, 39 Wis., 481 .

By the Court.— The judgment of the circuit court is affirmed.