Webb v. Call Publishing Co.

Owen, J.

The court ordered a new trial because the damages were excessive. The determination of the damages sustained by the plaintiff by reason of the printing of the libelous article was peculiarly a question for the jury. The court was not at liberty to set aside the verdict on the ground that the damages, as determined therein, were excessive unless it can be said they were so excessive as to create the belief that the jury had been misled either by passion, prejudice, or ignorance. Donovan v. C. & N. W. R. Co. 93 Wis. 373 , 67 N. W. 721 ; Flannigan v. Stauss, 131 Wis. 94 , 111 N. W. 216 . We are unable to agree with the trial court that the verdict in this case indicates -passion, prejudice, or ignorance on the part of the jury. The article was a most serious reflection on plaintiff’s character. No more serious charge can be lodged against a young man just starting out in life as plaintiff was, especially in view of the position he then held. It constituted a charge most serious to a young man seeking employment calling for character, integrity, fidelity, and trustworthiness. The jury were justified in finding that substantial damages to plaintiff followed as a result of the publication of the article, and we do not think the court can say as a matter of law that five or *50 six hundred dollars marks the limit of that damage. We do not think the verdict of the jury at all unreasonable, .and we feel that their verdict for .$1,000 was entirely warranted under the facts and circumstances of the case. While we do not think, a new trial should have been granted for the reason assigned by the trial court, we have concluded that it was properly granted for another reason.

The court excluded evidence of the publication of the retraction. This was done because plaintiff waived all claim for. punitory damages, and the court seemed to be of the view that the retraction was admissible only in mitigation of that class of damages. The defendants argue that it is admissible as bearing upon the actual damages resulting to the plaintiff from the misconduct of the defendants. It is argued, that the plaintiff should recover no more than his actual damages, and that the amount of damages resulting from the publication of .the libel must have been reduced by the retraction thereafter published. We do not see how this logic can be assailed. Some who read the original article must have read the retraction and it must have had an influence in repairing the damage resulting from the publication of the first article. As the plaintiff was entitled to recover only for damages actually sustained by him by reason of defendants’ misconduct, the efforts made by the defendants to repair the damage done should have been placed before the jury for their consideration in conjunction with the publication of the original article and all other facts and circumstances in the case.

The court was possibfy misled by the provisions of sec. 4256a, Stats. • 'That provides that a retraction published within a reasonable time may be introduced upon the trial of any such action as a sufficient defense against any imputation of malice, and against the recovery of any damages except actual damages. By virtue of the provisions of that section, a retraction seasonably made operates as á complete defense against the recovery of exemplary damages. *51 It does not necessarily follow, however, that it is not admissible as bearing upon the question of actual damages. With reference to that class of damages the statute is silent. The question of the admissibility of a retraction for the purpose of enabling the jury to determine the actual damages is therefore to be governed by the ordinary rules of law.

We find it stated as a general proposition in many cases that a retraction is admissible for the purpose of mitigating damages, and that is the rule laid down by Newell in his work, on Slander & Libel. (3d ed.) pp. 1087, 1088. In nearly all the cases where that proposition has been, laid down, however, the question of punitory damages was involved, and the question whether the retraction is admissible for the purpose of mitigating actual. damages was not discussed. . In 17 Ruling Case Law, 448, it is said: “Since evidence of retraction is admitted in mitigation of damages on the theory that it tends to negative the existence of actual malice, it follows that such evidence of retraction can be received in mitigation of- exemplary damages only.” We have examined the authorities cited in support of that proposition of law. In • our judgment they .do ■ not establish the principle. The principal case, cited in support of that prop--osition is Clementson v. Minnesota Tribune Co. 45 Minn. 303 , 47 N. W. 781 . - In-.that-case."plaintiff :.claimed actual or special damages, that is, damages .pecuniary in their nature, and also-general damages,-that Ns,.', damages no.t-pecuniary in their nature, such .as to--reputation,-etc . The-defendant- interposed: a general-demurrer to' the complaint that it did not state- a cause-df action,-¿the ground, of.-objection being that it did not allege ,the.:s.erv'ic.e..-befor.e-suiLof-. notice on the publisher of-the-"-.newspaper specifying the statements in the libelous article alleged to be false and defamatory. The decision simply held that the notice was not necessary in an action to recover special damages, and that as to the special-damage feature the complaint stated a cause *52 of action. The decision was based entirely upon a construction of the Minnesota statute, and cannot be regarded as authority for the general proposition stated in 17 Ruling Case Law, above quoted.

In Massachusetts exemplary damages are not recoverable in an action for libel. Only actual damage may be recovered. In that state it is held that a retraction is admissible as bearing upon the question of actual damages. Ellis v. Brockton Pub. Co. 198 Mass. 538 , 84 N. E. 1018 . In that case it was said: “The publication of a retraction, complete in character and conspicuous in position, might be found to have a material effect in diminishing the mischief caused by the libel, and thus- substantially reduce • the damages sustained by the person libeled.” That appeals to us as good sense. Where a newspaper publishes a libelous article concerning an individual and within a reasonable time thereafter publishes a full and complete retraction, the latter article must in some degree neutralize the damaging effect of the first article; and where the amount of damages which the plaintiff has sustained by reason of defendant’s misconduct is involved, the jury is entitled to have before it not only the original article which caused the damage, but the subsequent retraction as well, so that it may form an intelligent opinion as to the net damage plaintiff has sustained.

• ’ The trial court excluded evidence of the retraction, and we think this was error for which a new trial should be granted. . While defendants should not be required to ■ pay costs in order to ■ secure a. new .trial for this reason, they have not appealed from that part of the order, and/conse-^ quently, we cannot disturb it. It follows that the order appealed from should be affirmed.

■ By the Court-Order affirmed.