126 Wis. 587 | Wis. | 1906
An objection to any evidence under the complaint was made, apparently on the contention that the words-in the complaint “the dead child of William and Mary meaning,” assert that the child was born dead. Such meaning is-so obviously foreign to the whole sense that no discussion is necessary. The words, by reasonable interpretation, mean that the child was dead at the time the defendant made the-charge.
It is contended that the motion for nonsuit should have-been granted: Eirst, because the hearers knew that the child was born dead; secondly, because the exact words alleged in the complaint are not proved; and, thirdly, because the hearers did not understand the defendant to charge intentional or wilful murder. No one of these reasons exists in the evidence. Both Kittel and his wife testify that they did not know at the time of the first slander that the child was born dead, but-supposed that it lived for a short time. Hence, although-there was some evidence from the plaintiff that she had told them that it was dead — albeit with some circumstances of doubt and effort to “infuse life,”- — the testimony of these two witnesses was sufficient to carry to the jury the question of their knowledge. As to the second slander, no witness testifies to knowledge that the child was still-born; but at least two testify to a statement made on that occasion that it lived for a half an hour. Again, as to the speaking of the words, Mr. Kittel testified that at his house the defendant;
Error is assigned upon refusal to charge that the jury must find that the precise words alleged in the complaint were spoken, otherwise verdict for defendant; and upon the charge, “It will be sufficient if you find that, the words in some one or more of the statements of the slanderous words found in the complaint' are substantially proven.” Doubtless the general rule is that the complaint in slander must allege the speaking of specified words and not merely that, in effect, a libelous charge of some kind was made. Schubert v. Richter, 92 Wis. 199, 200, 66 N. W. 107. It is also true that at common law the proof must establish the speaking of those words, or enough of them to constitute slander, with great exactness. Perhaps some authorities require absolute identity, not even countenancing transposition of the third person for an address in the second person. Proof merely that the substance of the charge was made, but in different words, is not sufficient. Even this rule does not require, however, that every witness must quote the words of the complaint, but merely that the narrative related by the witness shall convince the jury that defendant used the words alleged against him in the complaint. The great weight of authori
Certain other instructions requested by appellant either were so sufficiently covered by the charge given or were so inapplicable in the light of the evidence, as already outlined in considering the motion for nonsuit, that we cannot think discussion of them necessary. We do not find any error prejudicial to the appellant.
We cannot seriously entertain the contention that an award of $300 as compensatory damages for a charge of child murder against a woman of apparent respectability and good fame is excessive. Nor can we agree with appellant’s counsel that there is no evidence upon which the jury might have based a conclusion of actual malice to support punitory damages. Defendant asserted that the plaintiff was in the habit of practicing midwifery, or, as one witness phrased it, “that she went around doctoring, and it was time to draw the line/’
By the Court. — Judgment affirmed.