Hall v. Frankel

183 Wis. 247 | Wis. | 1924

Eschweiler, J.

The charge of an indecent assault and a battery being now out of the case, the complaint presents, 'notwithstanding the pleader’s attempted segregation into but two causes of action, the following: '

Three several, separate, and independent causes of action against the defendant Moses Frankel for slander, with appropriate allegations as to damages in the sum of $2,000 in each.

A separate and independent cause of action for an alleged conspiracy between the two' defendants to spread false and slanderous statements in the community against the plaintiff Mrs. Hall, as a result whereof the plaintiffs were injured in the sum of $1,000.

Four separate, several, and independent causes of action against the defendant David Frankel for slander, with appropriate allegations that as to three of them the plaintiffs were injured $2,000 respectively,, and in the last $1,000.

None of these distinct slander causes of action are converted into1 conspiracy actions, as is now suggested by plaintiff, by force of the recitaí as preface to the so-called third cause of action (which includes the four slander causes against the defendant David Frankel) that “plaintiffs re-allege- all the allegations heretofore made,” etc., as quoted supra.

A reasonable' application of the rules for construction of pleadings would limit such resort to brevity to the general statements applicable to all the causes, such as residence and relationship of the parties. • This certainly could not incorporate the assault and battery charge and the prior slander charges into each of the subsequent slander charges, nor could it work backwards and incorporate the conspiracy charge into the three several prior slander charges against defendant Moses Frankel. Such a resulting jumble cannot be countenanced.

So far as the seven several slander causes of actions are concerned, the joint and several judgment cannot be permitted to stand. Slander, unlike-libel, is, with rare exceptions, none of which are here present, an individual or separate, as distinguished from a joint, tort. Repetition of the identical slander by several persons, or by the same person, gives rise to a separate, independent, and several right of action for each statement. 1 Cooley, Torts (3d ed.) p. 209; Newell, Slander & L. (3d ed.) p. 467; 17 Ruling Case Law, 379; Yocum v. Husted 185 Iowa, 119, 167 N. W. 663; Blake v. Smith, 19 R. I. 476, 34 Atl. 995.

It follows that defendant David Frankel was not a proper party in these several slander causes of action against defendant Moses Frankel, and the same is true as to defendant Moses Frankel in the four causes set forth as against defendant David Frankel, and it was prejudicial error to compel the defendants to remain so joined upon the trial, each thereby being held for -his own several wrongs and for the other defendant’s several wrongs.

The judgment cannot be supported under that part of the complaint charging a conspiracy by the-defendants to falsely charge the plaintiff with theft and thereby injure-her reputation.

It is undisputed that on--the morning of July 4th.Mrs. Hall was in defendants’ store and that the defendant Moses Frankel displayed certain articles of merchandise to the defendant David and others then entering the store, claiming that Mrs. Hall had stolen the same and concealed them in a dress which she had just purchased or exchanged. Mrs. Hall’s version of the transaction was that just before such announcement and while they were alone, defendant Moses Frankel had made an indecent proposal to her and was seeking to drag her to the rear of the store, and that upon the entrance of the son and others he immediately desisted and as a cover to such transaction falsely charged her with the theft of these articles. This was denied by the defendant, who testified that there was a theft. The jury found in favor of the plaintiff’s version as to this transaction and the court with some reluctance allowed such finding ■ to stand. • We do not deem it necessary to express an opinion on this question of fact.

From Mrs. Hall’s own testimony it appears that upon the charge being so made she made- no statement affirming or denying the truth of the same, and a moment or two thereafter left the store saying nothing more than that she would tell her husband. Mrs. Hall asserts that on the following day, at an interview with Mrs. Frankel and her son, the defendant David, she then spoke of the alleged assault upon her on the preceding day. She does not, howeverj testify that at that time she denied the charge made against her of the theft.

There is no testimony in the record to- the effect that the defendant David Frankel was chargeable, at any of the times that he made the admitted statements concerning the alleged theft, with knowledge that such charge was false. There is nothing, therefore, in the record, other than the fact of the relationship between the defendants in a family and business way, upon which it could be held that the defendant Dq»vid Frankel was participating with his father, Moses Frankel, in the latter’s purpose of using a false charge of theft against Mrs. Hall for the purpose of concealing or avoiding the consequences of an indecent assault by him. Such a situation is insufficient to warrant the conclusion of the trial court that there was a conspiracy by these two defendants such as would support the judgment here.

Having reached this result, we deem it unnecessary to dispose of other questions discussed.

By-the Court. — Judgment reversed, and'cause remanded with directions to dismiss the action.