20 Wis. 239 | Wis. | 1866
Lead Opinion
Does the complaint state facts sufficient to constitute a cause of action ? The alleged slanderous words were spoken in Herman, and a translation is given in the complaint. In determining whether the complaint is defective or not, we must be governed by the translation into English. If the plaintiff in his translation has rendered a foreign word of an actionable sense, by an English one whose meaning is not ac
It was urged at tbe argument, tbat because it was proved on tbe trial tbat tbe word in German wbicb was translated into English by tbe word “bitch,” bad two meanings in German, corresponding to tbe English words “bitch” and “prostitute,” and it was left to tbe jury to say in wbicb sense tbe word was used, and they found tbat it was used in tbe sense of prostitute, tbe complaint ought to be considered as good; or if not, tbat it might be now amended. But if tbe rule we have cited from Starkie is correct, tbe complaint must be tested by tbe English translation; and testing it by tbat, it is clear to us tbat tbe word “ bitch ” has not any such meaning as prostitute. It is used as a term of reproach when applied to a woman, but not to charge tbe crime of prostitution. Nor do we think tbe innuendo wbicb is added to all tbe alleged slanderous words can extend tbe sense of those words so as to make them charge tbe crime of adultery or prostitution, as there are no appropriate introductory averments of wbicb tbe innuendo is explanatory, or to wbicb it refers. 1 Starkie on Slander, 422, 431; Van Vechten v. Hopkins, 5 Johns., 220. By themselves, without any innuendo, they clearly charge tbe desire on tbe part of Mrs. K. to commit tbe crime of adultery, but not tbe act. Tbe alleged slanderous words, then, charged her with no crime, and tbe complaint does not, therefore, state facts sufficient to constitute a cause of action.
Tbe complaint is also defective in not averring tbat tbe words spoken in German were understood by those who beard them. Wormouth v. Cramer, 3 Wend., 394; Zeig v. Ort, 3 Chand., 29. It is obviojis tbat this case is not within tbe provisions of tbe code respecting amendments of tbe complaint in case of variance. Tbat applies only where there is a cause of of action set out in tbe complaint. Here there is none.
If tbe judgment can be affirmed at all, it must be on tbe
By the Court. — -The judgment of the circuit court must be reversed, with costs, and the circuit court is directed to dismiss the action.
A motion for a rehearing was denied, and the following opinion filed.
Rehearing
In the argument of the motion for a rehearing, our attention is called to the fact that leave was given on motion in the circuit court to amend the complaint, so as to aver that the words spoken in Grerman were understood by those who heard them. The record shows this, and so much of the former opinion as is based on the want of such averment was
"We are referred to the case of Lounsbury v. Purdy, 18 N. Y., 520, where it was held that a complaint which omits facts essential to a cause of action, if those facts were proved at the trial after the judge refused to dismiss the complaint, may he amended under that provision of their code which is the same as sec. 87, ch. 125 of our revised statutes; and that although the complaint was not in fact amended, the defect could not he taken advantage of on appeal.
If that decision is correct, then it would follow that if the cause had been taken without a case or bill of exceptions to the court, of last resort by appeal or writ of error,- the judgment must have been affirmed, although the complaint set out no cause of action whatever, and there was nothing to show what testimony was given on the trial. Eor the presumption is in favor of the validity of the judgment, and that presumption could not be rebutted or controlled by showing a bad or defective complaint; because if there was evidence that made out a good cause of action, it would cure the complaint; and that being so, such evidence would be presumed; otherwise a judgment might be reversed without a case or bill of exceptions which could not be with one. If the doctrine in the case of Lounsbury v. Purdy is to prevail, I do not see what need there is, after judgment, of any complaint; for if a complaint which shows no cause of action whatever may be sustained because the evidence is sufficient, why not decide that after judgment it is a matter of indifference whether there are any pleadings or not, and that this court should be governed entirely by the evidence and exceptions as to its competency in determining whether the judgment should be reversed. or affirmed ? But it is said the statute authorizes the pleadings to be conformed to the facts proved when the claim or defense is not thereby substantially changed. Is not a sub
The motion for a rehearing must be overruled.
No decision is an authority upon a point which is passed unobserved. The point that there was no exception in Thurber v. Jones, 14 Wis., 16, was not made by counsel, and I know was not observed or considered by the court I refer to the case of Tomlinson v. Wallace, 16 Wis., 224, where the point was made in this court, and decided the other way. See also Mead v. Bagnall, 15 Wis., 162, where the court took the same view of the law as in Tomlinson v. Wallace. Mr. Justice Paife said it was difficult to see how the appellant could raise the objection in this court for the first time on appeal, without even having appeared in the court below. Anri see likewise Bogert v. Phelps, 14 Wis., 88, in which it was expressly decided that this court will review no questions in a cause which were not fairly presented for. the consideration of the court before which the action was originally tried.
How my brethren can say tbat there is no power of amendment in this case, is certainly beyond my comprehension. Tbe statute, section 37, chap. 125, R. S., confers it in so many words —“ by inserting other allegations material to the case.” It may be done either before or after judgment; and I cannot but agree with the Court of Appeals in Lounsbury v. Purdy, tbat tbe power exists as to any material allegation which does not change substantially the claim of the plaintiff.
Again, it seems to me that tbe decision is in payable viola-
For these reasons I cannot assent to tbe decision of tbe majority in this case, but am of opinion tbat tbe judgment of tbe court below should be affirmed.
By the Court.■ — The motion for a rehearing is denied.