118 Wis. 594 | Wis. | 1903
The trial of this action was so pervaded by two errors that discussion of most of the specific assignments of error is rendered unprofitable, as they result from the view taken by the court upon the more general subjects. The first of these two dominant errors consists in holding that a previous controversy between plaintiff and defendant, of which most of the hearers of the slanderous words had no knowledge, might be offered in evidence and considered by the jury in deciding whether the words charged in the complaint and conclusively proved to have been uttered were used by the defendant and understood by the hearers to charge merely that plaintiff had deprived her of certain lands instead of having committed the crime of larceny, as would be the natural understanding of the declaration, “You stole my money.” This view was not only impliedly declared by admitting evidence of such prior controversy, but also expressly by instructing the jury to consider that fact in deciding upon the meaning of the words used. That words naturally charging a crime may be so qualified by the colloquium or by reference to circumstances as to make apparent that they charge an act, not a crime, is unquestionable. Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724; Egan v. Semrad, 113 Wis. 84, 88 N. W. 906; Carmichael v. Shiel, 21 Ind. 66; Townshend, Sl. & Libel, § 134; 18 Am. & Eng. Ency. of Law (2d ed.) 987. But obviously their natural meaning cannot be so qualified to the understanding of the hearers unless the latter know of the collateral circumstances. To charge one with having murdered a person who is alive to the knowledge of all cannot be understood to charge the crime of murder, but, if any one of the hearers has no knowledge that such person is still alive, that fact can have no effect on the under
The error above discussed was emphasized to the jury and rendered more likely to mislead them by the further direction that to warrant verdict for plaintiff they must find that the slanderous words were not only understood but intended to charge larceny. Of course, the meaning which the utterer intends to convey is not of itself material in an action of slander, except perhaps as to actual malice. The gravamen of that wrong is not the verbal assault upon the plaintiff, but the injury resulting to him from the effect upon others of the publication of false defamatory charges. That the words were intended by the utterer and understood by plaintiff in one sense is quite immaterial, if they naturally might be and were understood in another by the hearers. The effect upon them is what causes the plaintiff the damage recoverable in an action of slander, not the attitude of defendant. Eaton v. White, supra; Delaney v. Kaetel, 81 Wis. 356, 51 N. W. 559; Hallam v. Post P. Co. 55 Fed. 456; Townshend, Sl. & Libel, § 139. Defendant must be conclusively presumed to
2. We are persuaded that the court also erred in submitting’ to the jury at all the question of a nonlibelous significance for' the words concededly uttered. The collateral circumstance of a previous controversy being eliminated for the reasons above stated, there only remained to qualify the words charged in the complaint, certain preliminary remarks to-which defendant alone testifies, without making very certain that they were so uttered as to be heard by the witnesses. Assuming that they were, however, we have, upon the evidence most favorable to defendant, the following, as the entire colloquy: She approached plaintiff. Asked if he had received her notice,/and was ready to open his fence, so she could get her acre of land. Upon plaintiff’s responding, “Gro on, you old bitch,” she became angry, and told him her husband was dead seven yearsj and six months after his death he (plaintiff) fenced up the land so she had been deprived of it ever since. She then said: “You are a stinker! You are a thief 1 You stole my land. You stole my money.” We may concede that without the last assertion there might have been no slander per se in these words. The assertion, “You stole my land,” of course charges no crime. The charge, “You are a thief,” does, if unqualified, but very possibly the immediate connection with the charge of stealing land might, to the ordinary understanding, indicate that such mere epithet was, as often, used loosely, as charging only that form of dishonesty. But how any of the preceding words could, to ordinary understanding, qualify the unambiguous declaration, “You stole my money,” is not apparent. No one could suppose that the idea of deprivation of the acre of land merely was intended to be expressed by the charge of stealing money. That final word, whether from one speaking accurately or colloquially, excludes any such ambiguity as might lurk in a charge that
By the Oourt. — Judgment reversed, and cause remanded for a new trial.
