Born v. Rosenow

54 N.W. 1089, 84 Wis. 620, 1893 Wisc. LEXIS 100

• Court: Wisconsin Supreme Court
• Decided: April 11, 1893
• Status: Published

Opinion

Cassoday, J.

It is strenuously contended that the demurrer to the complaint ore tenus should have been sustained. The ground of this contention is that it is not alleged in the charging portions of the complaint that the words alleged to have been spoken were false or defamatory. It is alleged, in the conclusion thereof, in a general way, however, “that all of said words were false and defamatory,” and “ that by reason of the speaking of said false, slanderous, and defamatory words by the defendant the plaintiff has been greatly damaged in her good name and reputation.” It has long been settled in this court that where the sufficiency of the complaint is thus raised for the first time on the trial, more latitude of presumption will be indulged to sustain it than where the objection is taken by regular demurrer. Hagenah v. Geffert, 73 Wis. 641. Under this rule we must hold the complaint sufficient, whatever might be our views had the question been raised by regular demurrer. For the same reason we must hold that there was no error in refusing to strike out a portion of the complaint.

The testimony of A'ugusta Block as to what she had heard the defendant say about the plaintiff three or four years prior to the trial was objected to on the ground that it was incompetent and immaterial. It was admitted only as tending to show malice, and upon that ground it appears to have been admissible. The mere fact that the defendant spoke in German what was so testified to by the witness, and that the witness, who appears to have understood both the English and the German, testified to the same in English, did not, in our judgment, render the testimony incompetent. The court expressly charged the jury to the effect that such evidence was not received as tending to prove, and could not have the effect of proving, a cause of action, but simply as tending to prove malice, which might be considered in estimating damages, if the jury should conclude that the causes of action alleged in the complaint had been proved.

After a witness had exhausted his recollection as to what was said upon a particular occasion, he was asked whether anything was said about a particular subject. The defendant objected on the ground that it was leading. We do not regard a question as leading which merely suggests the subject without suggesting any answer.

The charge of the court appears to be full and fair throughout, and the exceptions to portions of it must be overruled. There was no error in charging the jury that they might impose punitory damages in case they found that the words alleged were deliberately and maliciously spoken with intent to injure the reputation and character of the-plaintiff. Nor do we think the damages excessive.

By the Gowrt.— The judgment of the circuit court is affirmed.