Argued January 8, 1970. —
Decided February 3, 1970.
APPEAL from an order of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Affirmed.
For the appellants there was a brief by Podell Ugent of Milwaukee, and oral argument by Alvin R. Ugent.
For the respondent there was a brief by Richman Love of Milwaukee, and oral argument by Martin E. Love.
Action by plaintiff Edmund Wozniak against defendants Local 1111 of the United Electrical, Radio Machine Workers of America (UE), Nick Ballas, Donald Doberstein and Richard Massman to recover damages for libel.
After issue was joined, defendants moved for summary judgment, basing their motion on facts obtained from plaintiff by adverse examination. The trial court denied the motion for summary judgment. Defendants appeal.
The action arose out of a strike at the Allen-Bradley Company in Milwaukee. This strike was announced by Local 1111 of the United Electrical, Radio Machine Workers of America in a newsletter to its members which stated in pertinent part:
"REMEMBER !!! ON WEDNESDAY:
"Every worker in the Bargaining Unit will leave work together!! No scabs will be allowed to weaken this strike."
The same newsletter then continued with Jack London's description of a SCAB.
"`After God finished the rattlesnake, the toad, and the vampire, he had some awful substance left with which he made a SCAB.'
"`A SCAB is a two-legged animal with a cork-screw soul, a water-logged brain, and a combination back bone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.'
"`When a SCAB comes down the street, men turn their backs and angels weep in heaven, and the devil shuts the gates of hell to keep him out.'
"`No man has a right to SCAB as long as there is a pool of water deep enough to drown his body in, or rope long enough to hang his carcass with.'"
At the time of the strike Mr. Wozniak (the plaintiff) was employed by the Allen-Bradley Company in a nonmanagerial capacity. He was not, however, a member of the union and thus, despite the existence of picket lines, continued to work throughout the strike. When the plaintiff refused to join the strike, the union caused numerous allegedly defamatory letters to be mailed to his neighbors. These letters stated:
"YOUR NEIGHBOR IS A SCAB!!!
"Do you know that your neighbor, Edmund Wozniak, who lives at 2865 S. 44th St. is a scab at Allen-Bradley? The Allen-Bradley workers were forced to go on strike April 26 because of several unfair demands the company was making on them.
"The company has decided to try running scabs thru the picket line, to break the strike, rather than negotiate a settlement. Scabs cannot break this strike but they can certainly prolong it! Why not talk to your neighbor and ask him to stop this labor-scabbing which can only hurt his family and his fellow workers and may encourage the company to `stretch out' the date of settlement?
"This is not a scab-town. It is a union town. Let's keep it so!UE Local 1111 A-B Workers Union"
The following issue is raised by this appeal: Did the trial court err in denying defendants' motion for summary judgment?
". . . is the function of the court to determine in the first instance whether a communication published in the form of libel or slander is capable of a defamatory meaning. Hoan v. Journal Co. (1941), 238 Wis. 311, 298 N.W. 228; Luthey v. Kronschnabl (1942), 239 Wis. 375, 1 N.W.2d 799; Puhr v. Press Publishing Co. (1946), 249 Wis. 456, 25 N.W.2d 62; Meier v. Meurer (1959), 8 Wis.2d 24, 98 N.W.2d 411; De Husson v. Hearst Corp. (7th Cir. 1953), 204 F.2d 234. . . ."
Thus the trial court in denying the motion for summary judgment fulfilled this function when it held that the letters sent to the plaintiff's neighbors were capable of a defamatory meaning. The trial court then stated:
". . . Whether, considered in its entirety, under all the facts and circumstances it conveyed such meaning to those to whom it was published, cannot, in the court's opinion, be determined as a matter of law."
In Lathan v. Journal Co. (1966), 30 Wis.2d 146, 140 N.W.2d 417, however, this court indicated that if the writing complained of was defamatory, the court must consider the applicability of alleged defenses. It is the defendants' position on this appeal that the allegedly defamatory letter was substantially true. In support of this position they argue that while the term "scab" has many meanings, it was here employed in the context of a labor dispute and must be read in such a context. Reasoning that "scab" in such a context merely describes one who refuses to participate in a strike, they conclude that the statement was substantially true.
Webster's New International Dictionary, Second Edition:
"3. Opprobrious a. Slang. A dirty, paltry fellow; a scoundrel. b. Trade-Unionism. A workman who works for lower wages than, or under conditions contrary to, those prescribed by the trade-union; also, one who takes the place of a workman on a strike. . . ."
Funk Wagnalls New Standard Dictionary of the English Language:
"5. A workman who does not belong to or will not join or act with a labor-union; one who takes the place of a striker; a strike-breaker; rat."
Webster's Collegiate Dictionary, Fifth Edition:
"2. slang. A dirty paltry fellow; a scoundrel. 3. A workman who works for lower wages than, or under conditions contrary to, those prescribed by the trade-union; also, one who takes the place of a striker."
Black's Law Dictionary, Fourth Edition:
"A working man who works for lower wages than or under conditions contrary to those prescribed by a trade union; also one who takes the place of a workingman on a strike. . . ."
This reasoning is predicated upon the defendants' chosen meaning of the term "scab." Yet the trial court declined to accept this or any other meaning as a matter law. Such was within its authority.
Summary judgment is not a matter of right, and a trial court may deny summary judgment if it determines that the opposite side is entitled to a trial. Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis.2d 447, 162 N.W.2d 129, Zimmer v. Daun (1968), 40 Wis.2d 627, 162 N.W.2d 626. Since all that is necessary to entitle a party to a trial is a showing that the controversy is real and not a sham, considerable discretion is vested in the trial judge. Schuster v. Germantown Mut. Ins. Co., supra; Urban v. Badger State Mut. Casualty Co. (1969), 44 Wis.2d 354, 171 N.W.2d 422.
We are of the opinion that there is no clear issue of law which is capable of being decided without a factual determination. The trier of fact must determine the meaning which the communication conveyed to its recipients. We agree with the trial court that the case ought to be tried and not disposed of in a summary manner.
By the Court. — Order affirmed.