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Monson vs. Lathrop.

2. Where a libelous publication is the joint act of two or more persons, they may be sued either jointly or severally at the election of the plaintiff.

3. The writing of a libelous telegram and its delivery to the company for transmission constitute a publication.

APPEAL from an order of the circuit court for Portage County: CHAS. M. WEBB, Circuit Judge. Affirmed. The facts are stated in the opinion.

For the appellant there was a brief by John F. Cole, attorney, and Quarles, Spence & Quarles, of counsel, and oral argument by George Lines.

For the respondent the cause was submitted on the brief of Cate, Sanborn, Lamoreux & Park.

CASSODAY, C. J. The amended complaint alleged, in effect, that at the times mentioned the plaintiff was a minister of the gospel and a member of the Lutheran church, and in charge as rector of the Lutheran Church Society at Amherst, Wisconsin. That November 5, 1894, there was a general election in Wisconsin. That November 7, 1894, the defendant Lathrop wilfully and maliciously composed, wrote, and transmitted to the plaintiff by telegraph over the lines of the defendant the Western Union Telegraph Company, a foreign corporation doing business in this state, the false, libelous, and defamatory matter concerning the plaintiff following, with the innuendoes omitted, to wit: "Night message. The Western Union Telegraph Co. Dated Marshfield, Wis., 11-7-1894. To Rev. I. G. Munson: The citizens of Wisconsin demonstrated you are an unscrupulous liar. A MARSHFIELD DEMOCRAT." That said Lathrop then and there wilfully and maliciously delivered the said false, libelous, and defamatory matter, so composed and written, to the agent of the defendant company then and there in charge of its office at Marshfield, and duly authorized to receive and transmit the same, and then and there instructed the

Monson vs. Lathrop.

said agent to transmit the message by telegraph to the plaintiff at Amherst; and thereupon the company wilfully and maliciously transmitted the same to the plaintiff at Amherst, and delivered the same to him in writing at Amherst. That the agents and servants of the company at Marshfield and Amherst saw, read, and wrote the said message, and that, in the manner set forth, the defendants wilfully and maliciously published of and concerning the plaintiff the false, libelous, and defamatory matter aforesaid, to his damage. To such complaint the defendant Lathrop separately demurred upon the ground that it appeared upon the face thereof that the same did not state facts sufficient to constitute a cause of action against him. From the order overruling such demurrer, the defendant Lathrop brings this appeal.

We are constrained to hold that the message was libelous per se. Cranden v. Walden, 3 Lev. 17; Australian Newspaper Co. v. Bennett [1894], App. Cas. 284; Hake v. Brames, 95 Ind. 161; Bradley v. Cramer, 59 Wis. 311, and cases there cited.

It is contended that the complaint seeks to charge the two defendants jointly with the publication of the libel, and that it is insufficient for that purpose, and hence that the demurrer should have been sustained. Certainly there are authorities holding that a telegraph company may be held liable for sending libelous messages. Whitfield v. S. E. R. Co. 96 Eng. C. L. 113; Peterson v. W. U. Tel. Co. 65 Minn. 18. However this may be, it is well settled that the publication of a libel may be the joint act of two or more persons, who may, in such a case, be sued either jointly or separately, at the election of the plaintiff. But for two distinct publications of the same libel, one by A. separately, the other by B., two actions must be brought, one for each publication. But the plaintiff is not obliged to join as a defendant every person who is liable. He may sue only one or two, and the

Monson vs. Lathrop.

liability of the others will be no defense for those sued, or mitigate the damages recoverable. Newell, Defamation, S. & L. 382, § 42; Odgers, Slander & L. 440, 441. The demurrer raises no objection to the complaint on the ground of a defect of parties defendant, nor upon the ground that several causes of action are improperly united, and hence, under the statute, any such objection must be deemed to have been waived. R. S. sec. 2654. It is therefore immaterial, under the authorities cited, whether the complaint charges both defendants with jointly publishing the libel. The real question is whether it states a cause of action against the defendant Lathrop.

The writing of the message, and the delivery of it by him to the company for transmission, as mentioned, was a publication of the same. Wilson v. Noonan, 27 Wis. 598; Muetze v. Tuteur, 77 Wis. 236; Loibl v. Breidenbach, 78 Wis. 49. In the first of these cases it was held that "one who writes an article in English, and employs another person as his agent to translate it into German and publish it, will be liable if the German article so published is libelous, although the translation is inaccurate." In the last of these cases it was held that "one who negligently signs a libelous article without knowing its contents, and delivers it to the person who wrote it without any direction restricting the use to be made of it, is responsible for the publication thereof by the person to whom it is so delivered, where the article shows on its face that it is intended for publication." See, also, Bacon v. M. C. R. Co. 55 Mich. 224; Peterson v. W. U. Tel. Co. 65 Minn. 18.

It follows that the demurrer was properly overruled.

By the Court.- The order of the circuit court is affirmed.

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Fox vs. Masons' Fraternal Accident Association of America.

96 390

d108 160

390 2391

$391

Fox, Respondent, vs. MASONS' FRATERNAL ACCIDENT ASSO-
CIATION OF AMERICA, Appellant.

May 6-May 21, 1897.

Accident insurance: Agreement to arbitrate, when void: Public policy:
Occupation: "Lumberman in woods:" Special verdict: Instructions:
Construction of policy: Particular exposure: Self-executing change
of classification.

1. A provision in a mutual accident insurance policy requiring all questions between the association and the assured to be, at its option, settled by arbitration, thereby ousting the courts of jurisdiction over every part of the subject of liability and the amount thereof as well, is void as against public policy.

2. The fact that at the time of his injury the insured was superintend ing a small portable sawmill temporarily located in the woods for the purpose of cutting logs into lumber for use in a planing mill owned by him, does not, as matter of law, make his occupation other than that of a "mill owner, overseeing only," or place him in the classification including the more hazardous occupation of a "lumberman in the woods."

3. Where several questions were submitted to the jury for special ver-
dict in an action on an accident insurance policy, each seeking to
determine by an affirmative or negative answer whether the as-
sured at the time of the accident was engaged in a separate and
distinct occupation, it was not error to instruct the jury that if
they answered any one of the questions in the affirmative they
must necessarily answer the others in the negative.

4. Where an accident insurance policy provided that "if the assured
is injured in any occupation or exposure classified by the associa-
tion as more hazardous than that here given, his insurance and
weekly indemnity shall only be so much as the premiums paid by
him will purchase at the rates fixed for such increased hazard,"
and the scheme of insurance classified occupations and not acts
and exposures, a particular exposure, though not in pursuit of and
as a part of the business or occupation mentioned in the certifi
cate, is not material to affect the liability of the insurer.
5. Under a contract of accident insurance locating the policy holder
in a particular class and specifying as nearly as practicable his
actual occupation, a provision that, in case of change of occupation
to one more hazardous than that named, the insured should be

Fox vs. Masons' Fraternal Accident Association of America.

entitled to recover only such an amount as the premium paid by him would purchase at the rates fixed for the increased hazard, is self-executing, no change in the certificate itself being necessary to effect a reduction of the amount of insurance.

8. Thus, a letter from the insured to the company notifying it of a change of occupation, and the reply of the company that the classification of the insured had been reduced from class 2 to class 3, as effectually modified the contract as if the change had been written into the certificate.

APPEAL from a judgment of the circuit court for Waupaca County: CHAS. M. WEBB, Circuit Judge. Reversed.

Action to recover for a death indemnity on a certificate of insurance issued by the defendant, a mutual accident assurance association. George H. Fox made his application to the association with knowledge of its method of business and of the manual of classification of risks with reference to which all certificates of indemnity were issued, about the 26th day of November, 1888. He was then a station agent at Mankato, Minnesota. A certificate was duly issued to him upon such application, classifying his occupation as in class 1; death indemnity, $5,000. Such application contained a stipulation to the effect that, in case he should be injured in any occupation or exposure classified by the association as more hazardous than the one stated in such application,- that of station agent, he should be entitled to recover only such an amount as the premiums paid by him would purchase at the rates fixed for the increased hazard. The certificate contained a similar stipulation. It also contained a stipulation to the effect that all questions respecting the liability of the association should be settled by arbitration, at its option; that no suit should be brought except to enforce payment of the award of the arbitrators, unless the association refused to arbitrate, and that no suit should be brought at all after the expiration of one year from the date of the accident. On the 2d day of June, 1890, the assured notified the association in writing that he had changed his occupation to that of part owner in a sawmill at Big Falls, Minne

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