54 Wis. 90 | Wis. | 1882
It is urged that the words spoken were not slanderous per se/ that their meaning could not be enlarged by innuendoes; and that, as there was- no proof of special damage, the verdict must be set aside as against evidence. j
It was held by Lord Holt, O., J., that the conrt “ woulii give no- favor to words, and would give satisfaction to them whose reputation is hurt; and would take words in a common sense according to the vulgar intendment of the bystanders. The rule <ie mitiori sensu is to be understood, where the words in their natural import are doubtful,'and equally to be understood in the one sense as in the other.” Somers v. House, Holt, 39.
In a much later case, the same court, per Lord ElleNbouougti, C. J., said: “Words are now construed by courts, a? they always ought to have been, in the plain and popular sense in which the rest of the wor]d naturally understood them.” Roberts v. Camden, 9 East, 95. So in Hankinson v. Bilby, 16 M. & W., 443, Parke, B., giving the true test, said: “First ascertain the meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them.”
In Peake v. Oldham, 1 Cowper, 275, affirming 'the same case in error from the common pleas, Lord Maksíteld, C. J., held the speaking of the words, “I am thoroughly convinced that you are guilty, and rather than you should go without a hangman I will hang you,” with innuendoes, sufficient to sustain a verdict for the plaintiff. In that case it was said by the. court at common pleas that “ it [the innuendo] is not, there
In Blagg v. Sturt, 10 Ad. & Ell. (N. S.), 899, it was “held by the court of exchequer chamber, affirming the judgment of the Queen’s Bench, that it is for the judge to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to decide whether such meaning is truly ascribed to it.” See also Strader v. Snyder, 67 Ill., 406; Goodrich v. Davis, 11 Met., 473; Montgomery v. Deeley, 3 Wis., 709; Weil v. Schmidt, 28 Wis., 137.
This case seems to be clearly distinguishable from Frank v. Dunning, 38 Wis., 270; Weil v. Altenhofen, 26 Wis., 708; Vliet v. Rowe, 1 Pin., 413; Bloss v. Tobey, 2 Pick., 320; Carter v. Andrews, 16 Pick., 1; Snell v. Snow, 13 Met., 278. It is more analogous to Weil v. Schmidt, 28 Wis., 137; Cottrill v. Cramer, 43 Wis., 242; and particularly Ward v. Reynolds and Peake v. Oldham, supra; Geary v. Bennett, 53 Wis., 444. In the case last cited, the slanderous words spoken were: “ There is a foreign substance in your milk, similar to water,
Here the defendant charged the plaintiff during the last sickness of her husband, and when she was his sole nurse, with “ slow poisoning her husband.” Under our statute, the administering of poison in food, drink or medicine, with the intent to kill or injure a human being, is a crime punishable by confinement in the state prison. Sections 4384, 4374, 4337, R. S. Here 'the evidence tends to prove that the defendant, on being asked the condition of his brother, replied: “She is slow poisoning him, the termagan;” or, “That termagan is slow poisoning him;” or, “He is failing, and she,,I think, is dosing him with slow poison.” Then, on being asked why he did not “ see into it,” or “look about it,” he answered: “Wait till he is dead; my brother in Oshkosh will skin her alive, and I will see her in prison;” or, “Wait; if he dies, my brother in Oshkosh will skin her alive, and I will have her in prison — in state’s prison.” The objection that the plaintiff was allowed to testify that she supposed the defendant referred to her when he used the word “ termagan,” would seem not to be well taken, especially as she testified in another connection that in the conversation “my name was mentioned,” “the conversation referred to my husband andmyself,” and all the evidence tended to show it could not refer to any one else. Opinions of witnesses as. tb the person to whom pronouns and. ambiguous words applied, have, however, been allowed by the courts. Miller v. Butler, 6 Cush., 72; Leonard v. Allen, 11 Cush., 241; 2 Greenl. Ev., §417. It seems, however, that before a witness will be allowed to give his opinion that words were used in some other than their ordinary sense, the foundation must first be laid by -proving facts giving a peculiar character to the expressions used. Daines v. Hartley, 3 Exch., 200. But here the error, if any, was cured by the nature of the evidence given. J
Within the rule laid -down by the exchequer chamber, with
Was there any error in charging or refusing to charge the jury? The court charged the jury to consider, among other things, “ all the evidence on both sides touching the moral character of the plaintiff,”- but was silent, or at least left it somewhat vague or indefinite, as to-what effect, if any, good or bad character should have in determining the amount of damages to be awarded. Accordingly, the counsel for the defendant requested the court to charge, in effect, that “ in actions of this kind a person of bad character was not entitled to the same measure of damages as one of good character;” and if they found for the plaintiff, and also found that her “general character” was bad, “such bad character must be considered by” them in fixing the amount of damages, and that they were at liberty to find a verdict for the plaintiff for nominal damages only. The court did tell the jury that - they had “ the right to give nominal damages,” but nowhere gave the substance of what was contained in the other portion of the instructions so requested. In actions of slander, it is well settled that the plaintiff’s general character is involved in - the issue; and evidence showing what it is, and consequently its true value, may be offered on either side to affect the amount of damages. 2 Greenl. Ev., § 275; Earl of Leicester v. Walter, 2 Campb., N. P., 251; Larned v. Buffinton, 3 Mass., 546; Stone v. Varney, 7 Met., 86; Burnett v. Simpkins, 24 Ill., 264. The rule thus stated has frequently received the sanction of this court. Maxwell v. Kennedy, 50
Because the court did not conform to this well established rule in the particular mentioned, the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
By the Court.— So ordered.