Hellar v. Bianco

VAN DYKE, J.

Appellant brought this action against respondents, seeking to recover damages for a libelous publication. At the trial she made proof as follows: Respondents were the proprietors of a public tavern and for the convenience of patrons maintained a toilet room for men on the wall of which there appeared on May 4, 1950, libelous matter indicating that appellant was an unchaste woman who indulged in illicit amatory ventures. The writer recommended that anyone interested should call a stated telephone number, which was the number of the telephone in appellant’s home, and “ask for Isabelle,” that being appellant’s given name. At about 9 o’clock on the evening of that day a man, unknown to appellant, called the number and appellant answered. The caller requested permission to visit her and when in the course of the conversation it developed that a meeting could not be arranged he told her “there is some of the most terrible writing over here on the wall of the men’s toilet about you, that is where I got your telephone number and your name.” He suggested that she look into it and told her he was calling from respondents’ tavern. Appellant informed her husband of the conversation and he called the tavern and talked with the bartender who was shown to have been in charge of the tavern during the absence of respondents. He told the bartender that his attention had been called to some writing on the walls of the

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men’s toilet regarding his wife, that he would give the bartender just 30 minutes to take it off the wall and that he was coming out to investigate. The bartender replied that he was busy and alone and would remove the writing when he got around to it. Appellant’s husband thereupon called a constable and after some delay arrived at the tavern where, in company with several people, including the bartender, he went to the toilet and found the libelous matter still on the wall. Falsity of the libel was shown and its defamatory nature is conceded. In fact it was shocking. The husband, constable and other persons present when the group went to the toilet and found the defamatory writing still upon the wall were shown to have understood the appellant was the person referred to in the writing and the writing itself was sufficient to be understood by anyone knowing about it that it was written concerning her.

(Peterson