113 Wis. 123 | Wis. | 1902
The following opinion was filed November 29, 1901:
This is an action for slander, commenced April 20, 1900. The complaint states four separate causes of action, and each alleges, in effect, that the plaintiff was and always has been a single female, of pure and chaste
The defendant; in answer to each of said four causes of action, admitted that the plaintiff is and always has been unmarried, and had been for several years then last past housekeeper for Eev. C. Delouw, a Catholic priest, at the town of Holland, and alleges, in effect, that at each of the dates mentioned the plaintiff was pregnant of a bastard child; that for twenty years then last past the defendant had been a farmer,
The answer also alleges as mitigating circumstances, and by way of mitigation of any damages the plaintiff may be entitled to, all the facts and matters thereinbefore set forth, and repeats and restates, all and singular, such facts and matters, and that the defendant would give evidence in mitigation as well as justification.
At.the close of the trial the jury returned a verdict wherein they found for the plaintiff and assessed her compensatory damages at $1,545, and punitive damages at $500, making in the aggregate $2,045. Erom the judgment entered thereon the defendant appeals.
1. Error is assigned because the court refused to sustain an objection to any evidence under the fourth cause of action set forth in the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action. The complaint alleges that the words were spoken in the Holland language, and, on a true translation thereof into English, are and meant and were understood to mean as stated in the complaint.. Had a regular demurrer been interposed to that cause of action, it would probably have been sustained. But a pleading is to be more liberally construed when the objection is first raised by demurrer ore terms. Here it was not raised until what constitutes twenty-nine printed pages of testimony' had been taken on the part of the plaintiff. The plaintiff had called and examined two witnesses, including the defendant, who had testified to the effect that in his conversation with Verkuylen at Eorest Junction, alleged, he had said: “Have you got the news from Hollandtown ? There is something going on,” — “something loose;” that “she looked big in the abdomen.” “She looked like a woman that was in the family way;” and that
2. The third cause of action was taken from the jury for the reason tbat it is alleged in the complaint as having been spoken in the English language, whereas it appears from the evidence that it was spoken in the German language, and no translation is alleged. The case, therefore, was submitted to the jury on the first, second, and fourth causes of action alleged. The plaintiff was properly allowed, however, to prove what the defendant said to Wolfinger at the city of Kaukauna, March 1, 1900, in regard to the plaintiff’s chas-
3. Exception is taken to that portion of the charge which reads as follows:
“It is admitted that the proof shows that the defendant did say of the plaintiff that she was pregnant, in the presence of witnesses who heard and understood the charge, and that the charge was false; and it is conceded by the counsel that under the law as construed by the court, although different from what he claims it should be, that your verdict must be for the plaintiff for some amount, which is the actual damage that the plaintiff has sustained in consequence of the slander.”
Near the close of the testimony the trial judge announced, •in effect, that it did not seem to him “that the communications made under the circumstances, as disclosed by the testimony,” could be regarded as privileged. Exception was taken to such remark, and also the refusal of the court to charge the jury that “the alleged slanders in this case were qualifiedly privileged communications and, to entitle the plaintiff to recover, she must show actual malice on the -part of the defendant, and the burden of proving such malice is upon the plaintiff.” . This court has repeatedly stated the rule as to what constitutes a conditionally privileged communication, and no repetition here is required. We refer to some of the more recent adjudications upon the subject. Rude v. Nass, 79 Wis. 321, 327—329; Brown v. Vannaman, 85 Wis. 451, 455; Buckstaff v. Hicks, 94 Wis. 34, 39-41; Hellstern v. Katzer, 103 Wis. 396. “The cardinal principle with reference to” conditionally- privileged “communications is that they must be made in good faith, by one who owes a duty or has an interest in the subject matter, to one to whom the duty is owing, or to one who has a corresponding interest.” Buckstaff v. Hicks, supra, and the other cases cited. The duty mentioned should be such as to call for action, — ■ legally, morally, or socially, — and the interest mentioned
“There is no right to make untrue and injurious statements concerning others, when they are not made to persons having right and power to investigate, and in an honest attempt to invoke such investigation or answer such inquiry.” Foster v. Scripps, 39 Mich. 382.
Of course every person is interested in the good name of the community in which he lives, but that does not give to one neighbor the privilege of slandering another neighbor by talking to a third. The same is true as to members of a church. Thus, in a case cited, the defendant, a member of a church, was appointed, with the plaintiff and other members of the church, on a committee to prepare a Christmas festival for the Sunday school. He declined to serve, for the reason, as stated by himself, that a third member of the committee had been guilty of an offense with the plaintiff similar to the one here charged; and the court held it was-not a privileged communication. York v. Johnson, 116 Mass. 482. To the same effect is Lovejoy v. Whitcomb, 174 Mass. 586. There is less plausibility in claiming that the communication in the ease at bar is privileged. The only relationship between the plaintiff and defendant is that they were both members of the same church. The priest of the church may possibly have had a superintending care over, and right to discipline, the plaintiff, but the communications complained of were addressed to no one having such authority. While such communications incidentally involved the conduct of the young priest, who may have been an officiating priest in the church of which the defendant and his family were members,, yet we are not called upon here to consider whether such communications.might have been privileged as against him. We must conclude that there was no error in holding that the communications were not privileged. This makes it unnecessary to consider other requests to charge, based upon the
4. It appears that soon after the action was commenced the plaintiff obtained judgment by default. Sufficient cause having been shown, the trial court set aside the default and allowed the defendant to answer. Upon the trial of the action, and in the opening address to the jury, counsel for the plaintiff, referring to such judgment by default and the opening of the same, and contrary to the repeated rulings of the trial court, said:
“The defendant, Sprangers, did not put in an answer, but immediately went to work to get rid of his property.” “It is competent to show the defendant’s attitude and dealings in reference to this charge all the way through. If the defendant can explain it, he may do so; but it is competent to show the entire transaction, that throws any coloring about this action.” “Is it not proper to show a man’s motive for doing a certain thing ?” “I simply do it to show this man’s actions concerning this charge, his knowledge of it, and the fact that he, instead. of defending the action, as a man charged with an offense of this kind would do, disposed or attempted to dispose of his entire property.”
The default and the opening of the same and allowing the defendant to answer, were all matters for the court and fully disposed of before the cause was reached for trial. The defendant was entitled to a fair trial of the issues raised by the pleadings, without reference to the default. Nevertheless counsel for the plaintiff persisted in making such statements after the trial court had repeatedly ruled that they were improper. The defendant was examined as a witness in his own behalf, and on cross-examination of him, and .against numerous rulings of the trial court, counsel for the plaintiff persisted in a series of irrelevant questions, some of them relating to such default, and to some of which he obtained answers well calculated to arouse the prejudice and
By the Court. — Tbe judgment of tbe circuit court is re-versed, and tbe cause is remanded for a new trial.
On February 18, 1902, a motion by tbe respondent to--, change tbe judgment of this court was granted, tbe facts-.. being thus stated by Mabshaíl, J.:
Judgment on tbe appeal in tbis case was rendered November 29, 1901, during tbe August term of that year. The-term came to an end December 20, 1901. After tbe commencement of tbe present term of court, and on January 15,, 1902, motion papers were filed witb tbe clerk in proceedings-to obtain a change in tbe judgment so that, instead of directing tbe cause to be remanded for a new trial, it would allow the error in tbe judgment to be cured by remitting-therefrom sucb sum as in tbe judgment of tbe court would reduce tbe amount of plaintiff’s recovery to a proper sum. Tbe motion papers were served on tbe attorney for appellant January 16, 1902. Tbe time set for bearing tbe motion was-January 24, 1902. Tbe court was not in session on that day, hence tbe bearing of tbe motion went over to January 28th, tbe next court day under tbe rules. That was tbe last day of' tbe sixty-day period for tbe retention of tbe record, unless-tbe time was extended by order of tbe court. On January 21, 1902, a paper was filed witb tbe clerk, signed by tbe attorneys for the respondent, stating that tbe appellant’s attorney desired to have tbe bearing of tbe motion continued from January 28th to January 31st thereafter, and that respondent’s attorney consented thereto on condition of tbe court
P. H. Martin> in support of the motion.
Lyman E. Barnes, contra.
Counsel for appellant concede that tbe motion of respondent should be classed as one for a rehearing, but contend that the court bad no jurisdiction of the case because tbe record therein was not retained here by order of tbe court beyond tbe sixty-day limit, requiring tbe same to be retained for tbe purpose of a rehearing; and further, that, conceding that tbe jurisdiction of tbe case continued up to tbe time tbe motion was submitted, Rule XX, as to tbe time and manner of making tbe motion, was not complied with, which precludes its being beard under tbe settled prae-
It is elementary that a court has no right to make any change in a judgment except to correct mere mistakes in that the entry thereof was not in accordance with the judgment pronounced, unless there is a motion for a rehearing, made within the time provided or authorized by sec. 3071, Stats. 1898. Such a motion, by force of the statute, carries jurisdiction of the case in which it is made over from one term to another, permitting the court to revise or vacate or change a judgment in any way which may reasonably be considered as within the scope of a motion for a rehearing, as the term is used in the section. The court has gone a great way in giving a liberal construction to the statute in order to preserve its control over cases as long as the law, in any reasonable view thereof, will permit, to the end that complete justice may be done. It has been held to cover many situations other than a motion for a rehearing strictly so called, which the court has seen fit to call a motion in the nature of a motion for a rehearing. The decisions of the court which apply to the latter class of motions do not in pll respects apply to the former, and unless that is understood much, want of harmony will appear to exist in the decisions of the court in regard to such matters.
Counsel for appellant cite many cases to our attention to the effect that a motion for a rehearing must be made within thirty days after the rendition of judgment, and in all respects in compliance with Rule XX, or it cannot be entertained, failing to discover, as it seems, that they relate only to a motion for a review of a question presented by the record which was or should have been passed upon at the first hearing, a motion for a rehearing strictly so called, not one of the character of that before us, called a motion in the nature of a motion for a rehearing. Krall v. Lull, 46 Wis. 643, is a good example of the latter class. The application was
From what has been said it will be seen that the decisions in Gough v. Root, 73 Wis. 32, and other cases> as to the necessity of complying with the procedure laid down in the court rules for a motion for a rehearing, have no application to a motion such as the one before us. The remark in Bonin v. G. B. & W. R. Co. 43 Wis. 210, that the rules as they then existed did not apply to such a motion, is true now. The rules have not been changed since that decision was rendered, in regard to the matters here involved. It follows that a motion in the nature of a motion for a rehearing, such as the one under consideration, can be made and heard while the court has jurisdiction of the cause under sec. 3071, that is, while the record remains in this court, by force of the statute alone, or that and an order of the court pursuant thereto, for the purpose of a motion for a rehearing, using the term in its broad sense.
If the record in this case was not retained here pursuant to sec. 3071 after the 28th day of January last, pursuant to an order of the court to that effect, then the jurisdiction of the court terminated on that day, and it'is without jurisdiction now to entertain the motion. In our judgment the record was so retained, though no express direction to that effect was made. The request of counsel for appellant, made for a continuance of the motion from January 28th to January 31st thereafter, and the consent of counsel for respondent thereto on condition of the record being retained by order of the court for the purpose of the motion, and the continuance of the motion by order of the court, upon such request and consent being brought to the attention of the court, necessarily included a direction to the clerk to retain the papers for the purposes of the motion. The clerk so understood it. Therefore, there is no want of jurisdiction to entertain the
Counsel for appellant contend that, admitting the jurisdiction of the court to still exist to make any proper change in its decision, the one requested should not be made because not justifiable by precedents; that the court has not heretofore .gone so far as to permit a plaintiff, after the reversal of a judgment in his favor, to take judgment for a less sum, where there was not left a determination of facts entitling him to recover some amount which could be arrived at reasonably by computation. Baxter v. C. & N. W. R. Co. 104 Wis. 307, upon which counsel for respondent confidently rely, is referred to as an extreme and doubtful authority, and it is said that it does not go as far as the court is requested to go in this case. There the court entirely eliminated an element of alleged injury for which the jury had awarded the plaintiff compensation, as part of a sum covering many elements of injury, though there was no satisfactory evidence that the particular injury mentioned was in fact suffered. We are entirely satisfied with that decision. It was followed in MacCarthy v. Whitcomb, 110 Wis. 113, where the amount required to compensate the plaintiff was as difficult of ascertainment as in this case.
The decision in the Baxter Case did not announce any new rule or principle. At most it involved an application of an old principle to a different state of things than it had been theretofore applied to, in harmony with the development of judicial administration constantly going on in the application ■of old principles to new situations, so as to render the administration s of justice more certain and efficient to serve the ends for which courts exist. Law is a progressive .■science. While principles do not change, their application is constantly being extended as the necessities of new con
This and other courts have frequently permitted a plaintiff to take judgment for a sum less than the amount awarded by the jury in a case like this, or involving similar difficulties .as regards an ascertainment of the proper amount of compensatory damages, instead of putting the parties to the expense'of a new trial. Corcoran v. Harran, 55 Wis. 120; Pratt v. Pioneer Press Co. 35 Minn. 251; Blunt v. Little, 3 Mason, 102; Upham v. Dickinson, 50 Ill. 97; Holmes v. Jones, 50 Hun, 345; Kinsey v. Wallace, 36 Cal. 462. True, quite a difference of opinion is found to exist in the decisions of the courts as regards the extent to which the principle involved should be applied, but they involve mere judicial policy, not judicial power. In Kinsey v. Wallace the cause of action was for malicious prosecution. Judgment was rendered in favor of the plaintiff. On appeal it was held that the verdict of the jury was excessive and it was ordered that if, within twenty days succeeding the filing of the opinion, the plaintiff should file in the appellate court a stipulation remitting $4,600 from the judgment and consenting to a reduction of the judgment to that extent, it should he reduced accordingly, and as reduced affirmed; but if the plaintiff
The right of the court to change the judgment as requested is questioned because of the death of the defendant, upon the theory that respondent, at the time such death occurred, had and now has only a mere pending cause of action. If that be so, and it be true, as counsel for appellant claims and counsel for respondent seems to concede, that the cause of action is not one of the class which survives under such •circumstances, the court would be powerless to act. Death would necessarily be considered as having forever ended the controversy. Stark v. I. & St. L. R. Co. 41 Ind. 149. The power of the court, however, in its discretion, to allow judgment to be perfected after the death of one of the parties to the litigation, where the right to recover prior thereto was ■established by the verdict of a jury or decision of the court, leaving no necessity for further proceedings in that regard, :and the delay is in any reasonable view attributable to the ■court, is an old common-law principle which cannot be found questioned anywhere. Spalding v. Congdon, 18 Wend. 543; Dial v. Holter, 6 Ohio St. 228; Perry v. Wilson, 7 Mass. 393. That power has been exercised by courts, both of law and equity, from time immemorial, and has been frequently said to be an inherent power, one which need not be conferred by legislative enactment. It has even been questioned ■ whether the legislature has power to take it away. Mitchell v. Overman, 103 U. S. 62; Reid v. Morton, 119 Ill. 118;
Two tests are generally applied: first, the delay must have been caused, as before indicated, otherwise than by the act of the party seeking the relief, — certainly, otherwise than by any fault of his, — and be in some way attributable to the court directly or indirectly; second, the cause must have been substantially ready for judgment, or so judgment might have been rendered before death occurred. Freeman, Judgments, §§ 67, 60; Blaisdell v. Harris, 52 N. H. 191. In the last case cited will be found a very full discussion of the subject. The power of a court to save a litigant who is in no way at fault for the delay resulting in the death of one of the parties prior to judgment being perfected, is undoubted. It is a matter of judicial policy, guided by precedents when and when not to apply it. It is considered that this case falls' within the principles which have governed courts in exercising such power. The delay in giving the relief to which
In most if not all the cases where the court has ordered judgment after the death of a party, as of the time when he was alive, to prevent a failure of justice, there was no necessity for any change in the determination reached in his lifetime, as to the amount for which judgment should go. No precedent for an extension of the rule to a case where the verdict of the jury is too large, but in all other respects is unimpeachable, has been cited to our attention or found by our own investigation of the subject. But no reason is perceived why the appplication of the principle should not be so extended, if it has not been heretofore, so as to cover any situation where the right to recover has been settled, the verdict of the jury or decision of the court as to that has not been disturbed, a new trial cannot be reasonably expected to involve any fair controversy except as to the amount to be awarded as damages, there is no absolute right to such a new trial, and the delay in the final termination of the litigation can be, in any reasonable view of it, said to have been caused by the court not providing for a termination of the suit without a new trial. If there is no precedent for such a use of the power of the court to award judgment, there can be no more opportune time than the present to make one; and the peculiar circumstances of this ease call loudly for it. In responding favorably to such call we are but following the course that
We have left to consider only the amount to which the judgment appealed from should be reduced, in order to, in all reasonable probability, fully free it from the effect of the improper conduct of the trial, mentioned in the opinion filed. We shall not take time to give reasons for the conclusion to which we have arrived on that point. It is considered that the judgment should be reduced to such sum as will eliminate entirely all punitory damages and will also take from it a substantial part of the amount awarded for pecuniary loss. In order to accomplish that beyond room for reasonable controversy, it is considered that the judgment must be reduced to $1,000 exclusive of costs, and that under the circumstances it should be perfected here if respondent sees fit to submit to the decision of the court. t
By the Gourt. — The judgment heretofore rendered in this action is vacated and respondent permitted, within twenty days after the filing of the foregoing opinion, to file with the clerk of this court her consent to a reduction of the judgment appealed from to $1,000 and costs as taxed. In case such consent shall be filed, the judgment will then be modified accordingly and affirmed as o-f the time when the cause was first submitted, with costs as heretofore taxed and allowed in favor of appellant. In case such consent to a modification of the judgment is not filed as indicated, it will stand reversed as of the time of the original reversal thereof, and the cause be remanded to the circuit court for further proceedings ac