Robertson v. Edelstein, 80 N.W. 724

Robertson v. Edelstein

80 N.W. 724

Wis.

1899

Check Treatment

Dodge, J.

There is abundant authority, as intimated in. Clute v. Clute, 101 Wis. 137, fоr the proposition that a word may have a local or cant meaning other than its gen .ral and accepted significance, and that if it be used and understood in such meaning, so that it does in fact charge the plaintiff with the commission of а crime, its use may be slander, as-much as the use of a word which, in proper significance, charges such crime. This rule, however, should be cautiously applied. The law is well settled, and based on the experience and wisdom of centuries, that an action of slander-ought not to be maintained for mere abuse and vilification, in the absence of actual sрecial damage. Such is not its *442purpose, and tbe maintenance of such, actions, therefore, ■would lead to a vast amount of unwise and unfortunate litigation. The law has wisely drawn the limitation, with exceptions not here material, at the point of charging a criminal offense by spoken words, and should not, by refinement, be extended beyond that point. An assertion merely of libidinous tendencies or general lewd conduct is not sufficient. K-v. H-, 20 Wis. 239. Our language is full >of words and expressions which are ambiguous, and which may mean one thing or another,— which may convey the .idea of specific crime, but which ordinarily do not. The' general аnd established meaning of a word is, of course, that which is to be presumed in any and all communities, .and an allegation that the word has a certain peculiar and unusual meaning in certain localities can ordinarily mean no more' than that it inay have that meaning in addition to its vproper and usual one. It imputes local ambiguity to a word ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍•otherwise single in meaning. The lеxiconic significance of words of our own language is matter of judicial knowledge ■because of common knowledge. The allegations of this ■complaint, therefore, cannot be .taken to mean that the word in question has been еntirely transposed in its use in the city ■of Superior so as not 'to have that force which its use for centuries has given it in the English languаge, but merely that, in addition and under some circumstances, it has the ■other more specific and criminal meaning.

The particular word complained of has been many times .the subject of .discussion by courts, and its general and primary force аnd effect have been stated, as they were by this court in K- v. H-, supra, to signify merely reproach or abuse, and not to convey a charge of any specific crime. Schurick v. Kollman, 50 Ind. 336; Logan v. Logan, 77 Ind. 558; Claypool v. Claypool, 56 Ill. App. 17; Riddell v. Thayer, 127 Hass. 490; Craig v. Pyles (Ky.), 39 S. W. Rep. 33; Blake v. Smith, 19 R. I. 476.

The effect, therefore, ©f the allegations by way of induce*443ment, as to the meaning of the word in Superior, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is no more than that it is there ambiguous аnd may have the criminal meaning. The meaning and significance with which it was in fact used cannot be extended beyond its ordinary and usual significance by innuendo, or an allegation of, what was the meaning in fact. Clute v. Clute, 101 Wis. 137. It therefore must become the duty of the court, before submitting the question to the jury, to examine the language used, and ascertain whether therein the word is capable of the criminal significance, or is used with its general and customary meaning. Any word, ambiguous itself, may be rendered certain and dеfinite by either the circumstances under which, or the other words in connection with which, it is used. Riddell v. Thayer, 127 Mass. 490. If an innocent meaning appears from the context or colloquium, it cannot be extended or diverted by the innuendo. The question, then, is not whether the word itsеlf is capable of the slanderous meaning, but Is it so capable in the light of the whole context? ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍To illustrate: A charge of unchastity or adultery •could not exist in an assertion that a woman “ is an old bitch because she quarrels with her neighbors,” or “ is a bаd woman because she doesn’t go to church.” Indeed, such apparently unambiguous terms as “ highwaymen, robbers, and murderers,” “ steal,” and “ thief,” have been held wwsfanderous by reason of the circumstances or context in which used. Stern v. Katz, 38 Wis. 136; Van Rensselaer v. Dole, 1 Johns. Cas. 279; Fawsett v. Clark, 48 Md. 494; Hall v. Adkins, 59 Mo. 144; Thompson v. Bernard, 1 Campb. 48; McGilvray v. Springett, 68 Ill. App. 275.

If. it appear that the expression as used could nоt naturally and reasonably be understood by people of ordinary understanding to charge the crime, it becomes the duty of the court to hold it not slanderous, whether presented on demurrer or by proof upon the trial. Montgomery v. Deeley, 3 Wis. 709; Campbell v. Campbell, 54 Wis. 90; Bradley v. *444Cramer, 59 Wis. 309; Sohild v. Legler, 82 Wis. 73, 75; Pandow v. Eichsted, 90 Wis. 298; Stroebel v. Whitney, 31 Minn. 384; Wing v. Wing, 66 Me. 62; Townshend, Slander & L. §§ 133, 134.

Applying these principles, it is apparent that the phrase quoted and alleged as slander was upon its face merely abuse and reproach. The character of the plaintiff for chastity, or her guilt or innocence of the crime of adultery, does not appear to have been the subject of comment, but rather the desirability of her presence in defеndant’s place of business. The very epithets and profanity which pervade the sentence are of that unreasоnable, inaccurate, and unmeaning character which are usually found in a verbal assault with the purpose of reрroaching and insulting the person addressed, without purposing to make any specific charge, but merely to evince ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the exasperation and contempt of the person speaking. The whole manner and matter of the assault must, to. thе ordinary hearer, negative the idea that defendant meant to charge anything specific, or had any meaning or рurpose other than to give vent to his own anger and to affront and hurt the feelings of the plaintiff. Exuberance of invectivе and meaningless epithet has often been recognized as cogent to refute a slanderous meaning in some of thе words, which, if used deliberately and alone, would clearly charge crime. It evinces a heat of passion in some mеasure at least inconsistent with definiteness of meaning and choice of expressions. Young v. Bridges, 34 La. Ann. 333; Penfold v. Westcote, 2 Bos. & P. (N. R.), 335.

We are satisfied that, even though the word “ bitch ” alone may convey the idea of adulteress, or one given to promiscuous unchastity, the language аlleged is not reasonably capable of the defamatory meaning ascribed to it by . the innuendo, and could not in customary acceptation have been understood as charging the plaintiff with the crime of adultery by ordinary hearers hаving no more knowledge of the ap*445plication of that language than is furnished to the court by the inducement and colloquium set forth in the complaint. The exclusion of all evidence and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment of dismissal for want thereof were therefore proper.

By the Court.— Judgment affirmed.