Roberts v. Lovell

38 Wis. 211 | Wis. | 1875

Lyon, J.

It is too clear for argument or controversy, that a complaint in an action for slander which does not aver that the defendant spoke the alleged slanderous words, fails to state a cause of action. This complaint alleges that the plaintiffs were husband and wife on a certain day, “ when the slanderous words hereinafter mentioned were spoken by the defendant,” and then proceeds to charge that certain slanderous words were spoken on that day of and concerning the plaintiff wife; but it fails to state, directly and positively, by whom they were spoken. The words above quoted are a mere recital, not an averment of fact. They show that the pleader had it in his mind, when he inserted them in the complaint, to aver in a subsequent portion of the pleading that on the day mentioned the defendant spoke certain slanderous words of and concerning the plaintiff Mrs. Roberts. Having failed so to aver, there is nothing in the pleading to which the recital can be referred. It is therefore inoperative, and necessarily goes for naught.

Suppose this complaint was verified by some person, and suppose it could be proved that the person who verified it knew that the defendant never uttered or spoke the slanderous words set out in the complaint. Could such person be convicted of perjury assigned on such verification? Clearly not. And the reason why he could not be so convicted is, that he has not sworn that the defendant spoke the words in question, but only that such words had been spoken. This is a very fair test of the sufficiency of the complaint, although perhaps it is not absolutely conclusive. ¥e see no way of escape from the conclusion that the complaint is fatally defective, and that the circuit court properly excluded the evidence, and, on the refusal of the plaintiffs to amend, properly dismissed the action. We regret that we are forced to this conclusion, because, as we are informed, the omission to charge that the defendant spoke the words was a clerical mistake, not discovered until the action had been dismissed. But the omission is vital, and we cannot lawfully supply the averment by inference or presumption.

By the Court. —• The judgment is affirmed.