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Gough v. Goldsmith.

CTION for libel. The opinion states the facts. The defendant had judgment on demurrer.

Bartlett & Hayden and A. Gough, for appellant.

Bingham & Pierce and E. E. Bryant, for respondent.

COLE, J. Assuming that the publication set out in the first paragraph of the complaint was libellous, upon showing special damages, and that it was published with a malicious intent, we still think the demurrer to that part of the complaint was properly sustained. The letter counted on as libellous was written by the defendant to Mr. Connolly, the Roman Catholic priest of Eau Claire, and begs Connolly, as a special favor to the writer, to avoid all familiarity with the plaintiff (and other persons named), because he (the plaintiff) is no longer a Catholic; is a member of secret societies, and does not go to his Easter duty. The writer then adds: "I understand they" (the persons named) "did the honors at your visit. I have a number of respectable Irish Catholics who felt hurt at the forwardness of those, as they call them, 'renegade Irishmen.' Pat Morris is the only one of them who attends his church, and he is mighty small and mean."

It is obvious that the letter is not, in itself, actionable, and to maintain an action for its publication, it is essential that the plaintiff should allege and prove that he has sustained special damages. The plaintiff is a lawyer, practicing law at Chippewa Falls; and it is averred that this letter was read by Connolly and numerous other persons in the counties of Chippewa and Eau Claire; and that by reason of its publication the plaintiff has sustained great injury to his good name, fame, credit and business in these counties, and has been shunned and avoided by many good Catholics in both places, since its writing and publication. The allegation as to special damages is as follows: "That a great number of persons, both in Eau Claire county and in the county of Chippewa, who are Roman Catholics, and who otherwise would have done so, refused to employ this plaintiff as such attorney-among whom were John Neiland and Patrick Boyle, of Eau Claire, or to give him any business, as such attorney, to transact, as they were formerly accustomed to do, being deterred therefrom by reason of said false and scandalous libel, and that by reason of the writing and publishing

Gough v. Goldsmith.

of said false libel, this plaintiff has suffered loss and damage in the sum of $5,000."

The special damages alleged must be the natural and immediate consequence of the writing and publication of the letter; otherwise no action will lie for them. Folkard's Starkie on Slander and Libel, 8622; Beach v. Ranney, 2 Hill, 309; Terwilliger v. Wands, 17 N. Y. 54; Anonymous, 60 id. 262; Hallock. Miller, 2 Barb. 630. Says BRONSON, J., in Beach v. Ranney: "A man is not responsible for all the remote and possible consequences which may result from his act, although he may be a wrong-doer." Now, if we examine the allegations of the complaint, can it be said that the special damages stated therein were the legal and natural consequence of the act of the defendant? The communication was sent

to Mr Connolly, asking him as a special favor to the defendant, to avoid all familiarity with the plaintiff. It is not alleged that Mr. Connolly, in consequence of receiving the letter, did avoid the plaintiff, or withhold from him any business, or refuse to employ him as an attorney. But it was other persons, in the counties of Eau Claire and Chippewa, who read this letter, that refused to intrust him with their business as they were formerly accustomed to do. The special damages stated, then, were not the legal and natural consequence of writing and sending the letter to Mr. Connolly, but resulted from his unauthorized act in letting others read it. There is nothing to warrant the inference that the defendant desired or intended that the letter or its contents should be seen or known by any one except the person to whom it was sent; and the act of Connolly in permitting others to read the letter was what caused the injury complained of. In Terwilliger v. Wands, supra, the doctrine is laid down, that "where words are spoken to one person, and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he had alone uttered them. The special damages in such a case are not a natural legal consequence of the first speaking of the words, but of the wrongful act of repeating them, and would not have occurred but for the repetition; and the party who repeats them is alone liable for the damages. Ward v. Weeks, 7 Bing. 211; Hastings v. Palmer, 20 Wend. 225; Keenholts v. Becker, 3 Denio, 346; Stevens v. Hartwell, 11 Metc. 542." It seems to us that the same principle must govern in

Brown v. Swineford.

respect to the special damages stated in this case. The libel was not read by any person who refused to employ the plaintiff or give him their business, at the request or by the direction of the defendant; but was read by such persons through the voluntary act of Connolly, for whose action the defendant is not responsible. And within the rule of law above stated, as the special damages laid were not the direct and immediate, but the remote and secondary, consequence of the publication of the libel, the defendant is not answerable for them.

By the Court.-The order of the Circuit Court is affirmed.
RYAN, C. J., and LYON, J., took no part.

BROWN V. SWINEFORD.

(44 Wis. 282.)

Constitutional law — twice in jeopardy-action for damages for tort previously punished as a crime - new trial - impertinent comments of counsel.

The constitutional provision that no person shall be put twice in jeopardy of punishment is not violated by an award of exemplary damages in a civil action for a tort which has previously been punished as a crime.

Where counsel having the last argument persist against objection in arguing to the jury upon facts pertinent to the issue but not in evidence, or in appeal. ing to prejudices foreign to the case in evidence, a new trial may be granted therefor.*

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CTION of assault and battery, for which the defendant had been criminally prosecuted and fined. The court charged that the jury might allow "reasonable damages for any loss of health, or bodily or mental suffering, caused by the personal injury inflicted, and also if the wrong was inflicted wantonly or maliciously, for the personal indignity and insult to the plaintiff by the assault, for the public exposure and contumely, and for injury to his feelings." Also, that, "if the injury was inflicted by defendant upon the person of the plaintiff under circumstances of aggravation, insult or cruelty, with vindictiveness, wantonness or malice on defendant's part," the jury were authorized "to impose damages over and above those heretofore indicated (which are denominated actual or

See Coble v. Coble, ante, p. 838.

Brown v. Swineford.

compensatory damages), as a punishment to defendant, and as a warning and example for himself and others." Also, that, "In respect to damages for injury to feelings on account of the insult, public exposure and chastisement, the indignity and contumely. attending the assault, as well as those damages which the jury may allow in their discretion if they find the injury was inflicted maliciously by the defendant, those may be mitigated, and even wholly defeated, by proof of malicious or provoking language or conduct upon the part of the plaintiff, immediately previous to the assault." Other facts appear in the opinion. The plaintiff had judgment.

C. C. Remington and Vilas & Bryant, for appellant.

Gill, Bashford & Spilde, for respondent. 1. The question whether punitory damages could be recovered in the action, although the act of defendant had been punished as a criminal offense, is no longer an open one in this State. Mc Williams v. Bragg, 3 W18. 424; Birchard v. Booth, 4 id. 67; Barnes v. Martin, 15 id. 240; Hooker v. Newton, 24 id. 292; Klopfer v. Bromme, 26 id. 372; Hamlin V. Spaulding, 27 id. 360; Wilson v. Young, 31 id. 574; Craker v. Railway Co., 36 id. 657; Bass v. Railway Co., 42 id. 654. As to the doctrine elsewhere, see Sedgw. on Dam. (6th ed.) 569, and note;' Day v. Woodworth, 13 How. (U. S.) 363; Cook v. Ellis, 6 Hill, 466; Hendrickson v. Kindsbury, 21 Iowa, 380; Ward v. Ward, 41 id. 686. Plaintiff's counsel, at the trial, did not comment on any fact not proven or admitted, or fairly inferable from the evidence; but if the fact were otherwise, it would not be ground of reversal here, the Circuit Court having in its discretion refused a new trial on that' ground. Hilliard on New Trials, 225, §§ 40, 45; Thompson v. Barkley, 27 Penn. St. 263; Larkins v. Tarter, 3 Sneed, 681; Fry v. Bennett, 3 Bosw. 200, 243; s. c., 28 N. Y. 331-2; Wightman v. Providence, 1 Cliff. 524.

RYAN, C. J. [Omitting a preliminary observation.] 1. A very able and solemn appeal was made to the court, to exclude the rule of exemplary damages in actions of tort, when the tort is punisha ble as a crime. The position was founded upon the clause in § 8, art. II of the Constitution, that no person, for the same offense, shall be twice put in jeopardy of punishment. It was argued, with very great force, that punitory damages given in the right of the public, in addition to full compensation of the sufferer by an act

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which is at once a tort and a crime, as in this case and in Mc Wil liams v. Bragg, 3 Wis. 424, and Birchard v. Booth, 4 id. 67, subject the tortfeasor to punishment twice for the same offense. And it might have been added, that while the statute limits the pecuniary fine upon criminal prosecution for such an act, there is but vague limit to the punitory damages which a jury may find in a civil action. It certainly appears to be an incongruity, that one may be punished by the public for crime, upon criminal prosecution, by fine limited by statute, and again punished in favor of the sufferer, but in right of the public, for the same act, by punitory damages, with little limit but the discretion of a jury. This is but another illustration of what appears to be the incongruity of the entire rule of exemplary damages.

On this subject the writer adheres to what he said in Bass v. Railway Co., 42 Wis. 672; s. c., 24 Am. Rep. 437, confirmed by comments which he has seen upon it in legal periodicals. And he believes that his views of punitory damages, as an original question, are sanctioned by every present member of the court.

The particular view of the rule now insisted on was overlooked in McWilliams v. Bragg, Birchard v. Booth, and all the cases in this court in which the action was against the actual tortfeasor, subject to criminal conviction for the act. In Railroad Co v. Finney, 10 Wis. 388; Bass v. Railway Co., 36 id. 450; s. c., 42 id. 654; 6. C., 24 Am. Rep. 437; Craker v. Railway Co., 36 id. 657; s. c., 17 Am. Rep. 504, and other cases where the action was against the master for the tort of the servant, it could not well arise. So far, therefore, it is a question of first impression here, and the court congratulates itself that it arises first in a case thoroughly discussed by able counsel on both sides.

It would have been no subject of regret to the court, if the obligation of the Constitution called upon it to abridge the application of the rule. But the court is unable to hold that the constitutional provision has any controlling bearing on the question. The Constitution only re-enacts what was the general, if not literally universal, rule at common law. See authorities collected in 1 Bish. Crim. Law, §§ 980-987. The word jeopardy is therefore used in the Constitution in its defined, technical sense at the common law. And in this use it is applied only to strictly criminal prosecutions by indictment, information or otherwise. Commonwealth v. Cook, 6 Serg. & R. 577; State v. McKee, 1 Bailey, 651:

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