53 Wis. 63 | Wis. | 1881
This is an action of slander. We think there was evidence tending to prove the speaking of the slanderous words substantially as alleged. It seems.to be well settled under our statute (section 2678, R. S.), that affirmative proof of mitigating circumstances cannot in general be given in evidence without being specially pleaded. Wilson v. Noonan, 35 Wis., 322; Langton v. Hagerty, id., 151. This being the rule, the court properly excluded the evidence offered by the defendant in mitigation of damages. The plaintiff was allowed to prove, however, against the objection of the defendant, that about the time of speaking the words the defendant caused him to be arrested for the alleged theft referred to in the slander. The defendant then offered evidence tending to explain the circumstances under which he caused the arrest to be made— not in mitigation of damages caused by the slander, but to show good faith and want of malice on his part in the matter of the arrest,— and that in causing the arrest to be made he had acted under a mistake and upon unfounded information. This offer was made to rebut the inference of express malice, inferable from the plaintiff’s proof of the arrest. This offer was excluded by the court. These rulings were excepted to, and are assigned as error.
The evidence given by the plaintiff of the arrest could only be admissible as tending to show express malice, and thus aggravating the damages. If evidence of such fact could be properly admitted on the part of the plaintiff without plead
By the Court. — The judgment of the county court is reversed, and the cause is remanded for a new trial.