September 8, 1959 —
October 6, 1959.
APPEAL from an order of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Woodrow J. Bach of Milwaukee, for the Meurers, and Carlton Roffa of Milwaukee, for Samuel J. Ansfield, and Arnold J. Ansfield of Milwaukee of counsel.
For the respondents there was a brief and oral argument by John W. Emmerling of Milwaukee.
On November 8, 1958, plaintiffs commenced an action seeking compensatory and punitive damages. Defendants demurred to the complaint. The demurrer was overruled by the circuit court on December 29, 1958, and the appeal is from that order.
The allegations of the complaint are in substance as follows:
Plaintiffs are Henry Meier and Lorraine Meier, his wife. Defendants Meurer are copartners, doing business as Meurer Bakery at six locations in Milwaukee, and defendant Ansfield is an auctioneer, liquidator, and appraiser doing business as Samuel J. Ansfield Company. Prior to March 13, 1958, the Meiers owned and operated a retail bakery business under the name of Meier Bakery at 7830 West Burleigh street in Milwaukee. On March 13th, they sold certain furniture, fixtures, and equipment then located in the premises to the Meurers but did not transfer the name, Meier Bakery, or any of the good will of their business; that after March 13th, the Meurers owned and operated a retail bakery business at the Burleigh street location under the name of Meurer Bakery, and at no time operated any business under the name of Meier Bakery; that on some date after March 13th, the Meurers hired Ansfield as their agent to sell at public auction some of the items purchased from plaintiffs, together with certain other personal property theretofore owned by the Meurers; that on or about April 20th, the Meurers and Ansfield, their agent, caused a handbill to be published and distributed to all retail bakeries in Milwaukee county, as well as suppliers of goods and services to retail bakeries. The handbill is Exhibit A to the complaint and announces a sale at public auction. The name and address of Samuel J. Ansfield Company, Auctioneers — Liquidators — Appraisers, appear on it. It lists equipment and reads in part: "We have been ordered to sell at public auction on Monday, May 5th, at 2 p. m. the bakery equipment formerly belonging to the Meier Bakery on their premises located at 7830 W. Burleigh St., Milwaukee." The name "Meier Bakery" is in the largest type in the handbill.
The complaint also alleges that on Sunday, May 4th, defendants caused publication of a newspaper advertisement as one of a group of advertisements of public auctions. Exhibit B is a copy of three advertisements of auction sales by defendant Ansfield, printed together. The one appearing at the top announces (in part) that "We have been retained by the Milwaukee county expressway commission to sell at public auction the homes and garages on expressway and right of way." The next lower advertisement announces that "By order of the U.S. district court for the Western district of Wisconsin, we will sell at public auction Saturday, May 10th, commencing at 10 a. m. (C.D.S.T.) all of the assets of the (bankrupt) United Pipe Line Contractors, Inc., on their premises . . ." The bottom advertisement announces "We have been ordered to sell at public auction on Monday, May 5th, at 2 p. m. the bakery equipment formerly belonging to the Meier Bakery on their premises located at 7830 W. Burleigh St., Milwaukee." The name "Meier Bakery" was in the largest type in this advertisement.
The complaint purportedly alleges two causes of action, one based upon the handbill and one upon the advertisement. It alleges that the plaintiffs' bakery business (previously referred to) and the name, "Meier Bakery," at all times enjoyed a good reputation and credit standing; that in the operation of the plaintiffs' bakery business, plaintiffs made purchases and incurred other obligations upon the basis of their credit and were able to do so because of their good reputation; that plaintiffs customarily paid all obligations promptly, and that their business was never insolvent, placed in receivership, or adjudicated a bankrupt; that the success of their business has always depended in large part upon their good reputation; that as a direct result of each publication referred to "plaintiffs have been injured and damaged in that their good reputation and credit standing in the community have been irreparably injured; their valuable property consisting of the name `Meier Bakery' has been irreparably injured; they have been brought into public scorn, scandal, disgrace, and ridicule; and they have suffered great shame, embarrassment, humiliation, and mortification, in all to plaintiffs' damage in the sum of $10,000." No more specific allegations of damage appear. Plaintiffs also allege the serving of written notice complying with sec. 331.05, Stats.
With respect to each publication, plaintiffs allege that it was false, untrue, defamatory, and injurious to plaintiffs and the name "Meier Bakery" and their good reputation and credit standing in several particulars. In substance, it is alleged that the publications imply that defendants were entitled to -use the name "Meier Bakery" whereas they were not; that plaintiffs, or the Meier Bakery, are both insolvent or bankrupt or both; that an order requiring defendant Ansfield to sell the property was entered by a court of law in insolvency or bankruptcy proceedings; that the bakery equipment had ceased to belong to the plaintiffs or the Meier Bakery as a result of a default in some obligation to a creditor or creditors of plaintiffs, or the bakery, and had been taken by judicial process through the enforcement of a lien or security rights, or an insolvency or bankruptcy proceedings; that the publications state that the bakery equipment formerly belonged to the Meier Bakery whereas some of it never did belong to them; that the publications refer to the Burleigh street location as "their premises" meaning the premises of the Meier Bakery.
Plaintiffs also allege that defendants acted maliciously and for the express purpose of concealing the fact that the Meurers then owned all of the equipment to be sold and of thereby avoiding injury and damage to their own business, reputation, and credit standing, and causing it instead to plaintiffs and the Meier Bakery.
It is clear from the complaint that the publications complained of are true in large part. Plaintiffs assert, however, that the handbill and advertisement are capable of a meaning which is false and actionable, and that it is for the jury to decide whether the false and actionable meaning was conveyed to the readers.
Admittedly, there are several omissions or inaccuracies. The publications do not state who "ordered" the sale. They give the impression that all the items of equipment listed formerly belonged to Meier Bakery, although some of them did not. They may imply that the premises referred to were still occupied or controlled by Meier Bakery, although the situation had changed a few weeks previously. We deem these details unimportant, however, unless the statements as a whole are capable of a false and defamatory meaning. In this state, if a statement be substantially true it cannot be the basis for a civil action for libel. Williams v. Journal Co. (1933), 211 Wis. 362, 370, 247 N.W. 435; Smith v. Journal Co. (1955), 271 Wis. 384, 389, 73 N.W.2d 429. Plaintiffs have alleged no special damages arising from the publication of the specific inaccuracies referred to.
Plaintiffs argue that the publications were capable of being understood as stating that the sale was ordered by a court in a proceeding in which Meier Bakery was found bankrupt or insolvent, or that the property of Meier Bakery had been transferred to someone else by judicial process, or otherwise, as the result of default in some obligation to its creditors. The duty of the court at this stage is to determine whether the language used is reasonably capable of conveying a defamatory meaning to the ordinary mind and whether the meaning ascribed by plaintiffs is a natural and proper one. Woods v. Sentinel-News Co. (1935), 216 Wis. 627, 629, 258 N.W. 166; Judevine v. Benzies-Montanye Fuel Whse. Co. (1936), 222 Wis. 512, 517, 269 N.W. 295. "The words must be construed in the plain and popular sense in which they would naturally be understood." Leuch v. Berger (1915), 161 Wis. 564, 571, 155 N.W. 148. The words used must be "reasonably interpreted." Dabold v. Chronicle Publishing Co. (1900), 107 Wis. 357, 362, 83 N.W. 639.
In the case before us, would it be a reasonable interpretation of the publications that the Meier Bakery was bankrupt, insolvent, or had defaulted on its obligations? There is no reference in them to any court or proceeding in court nor to any sort of seizure or foreclosure. It is common knowledge that auction sales are held for many purposes in addition to the liquidation of estates of bankrupts and insolvents, and that the sales which result from many sorts of judicial proceedings are held by the sheriff. The publications make it quite plain that defendant Ansfield is in business as an auctioneer, liquidator, and appraiser and in no way suggest that he has any official capacity. The verb "order" does not exclusively mean "command" but also means "direct." Webster's New International Dictionary (2d ed.). The word is commonly used with respect to the directions given by employers and buyers of goods and services, as well as with respect to the directions or commands given by courts or officers. The language of the handbill and advertisement could not, in our opinion, be reasonably understood as a statement that the sale occurred because Meier Bakery had become bankrupt or insolvent or had defaulted on its obligations.
As we have stated, plaintiffs allege that the words of the publications did imply bankruptcy, insolvency, or default on obligations, but the demurrer only admits that the words were published as alleged, not the meaning which the plaintiffs have ascribed to them. Kassowitz v. Sentinel Co. (1938), 226 Wis. 468, 476, 277 N.W. 177.
Plaintiffs allege that defendants had no authority to use the Meier name. Unauthorized public use of another's name does not give rise to a cause of action for libel, and in several cases this court has decided that a cause of action for invasion of a right of privacy does not exist in this state. Judevine v. Benzies-Montanye Fuel Whse. Co., supra; Yoeckel v. Samonig (1956), 272 Wis. 430, 75 N.W.2d 925.
We are mindful of plaintiffs' claim that the placement of an item in a publication may be considered in determining its libelous character. 33 Am. Jur., Libel and Slander, p. 100, sec. 87. The advertisement appearing immediately above the one here involved was an announcement of a bankruptcy sale. In it, however, the owner of the property was referred to as bankrupt and the court ordering the sale was named. The advertisement second above, and the only other which plaintiffs incorporated in their complaint, announced a sale which obviously was not based on bankruptcy, insolvency, or default in paying obligations. We conclude that the placement of the advertisement with other announcements of public auction sales and below the two announcements of sales by the same auctioneer would not supply a basis for interpreting the announcement as meaning that Meier Bakery was bankrupt or insolvent.
Thus we conclude that the publications were not capable of the meanings alleged which would have reflected upon the credit standing of plaintiffs and that the complaint stated no cause of action. This conclusion makes it unnecessary to consider defendants' argument that plaintiffs would also have needed to allege that they are presently engaged in business in order to state a cause of action for a libel affecting, their credit standing.
By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer and dismiss the complaint.