Filber v. Dautermann

26 Wis. 518

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Cole, J.

It appears to us that the words set forth in the complaint are clearly actionable. They impute to the plaintiff Catharine an attempt to procure an abortion upon her daughter. This is an indictable offense under our statute, punishable by imprisonment in the county jail not more than one year nor less than three months, or by a fine not exceeding five hundred dollars, or by both fine and imprisonment, at the discretion of the court. Section 58, chap. 169, R. S. This is certainly a “ crime involving moral turpitude,” and subjects the party guilty of its commission to an “ infamous punishment.” The words are therefore actionable per se. Benaway v. Conyne, 3 Chand. 214; Montgomery v. Deeley, 3 Wis. 709; Ranger v. Goodrich, 17 id. 78.

But it is said that the words used do not, in their ordinary signification, necessarily impute a crime. The words were spoken in the German language, in the presence of persons who understood that language. They are translated, and charge the plaintiff Catharine with administering to her daughter pills to drive off a child. The natural meaning of this language is, to charge that Catharine attempted to procure an abortion upon her daughter; and it would, doubtless, be understood in that sense by those who heard it. This is the natural import of the words spoken, and they convey to the minds of ordinary persons the charge of a crime. Robinson v. Keyser, 2 Foster, 323; Bricker v. Potts, 12 Pa. St. 200.

It is further argued in support of the demurrer, that the complaint is bad because it does not show that plaintiffs had a daughter, or that she was pregnant, or that the speaker or hearer knew these facts. But the fact that the plaintiffs had a daughter is necessarily assumed in the defamatory language. And where the slander expressly, or by necessary implication, assumes the existence of certain facts, the plaintiff may accept the statement and rely upon it, without being obliged either to allege it in his pleading or establish its truth by evidence. This rule is recognized by the following authorities: 2 Greenl. Ev. § 412; Jones v. Stevens, 11 Price, 235 (5 Eng. Exch. R. 62); Hayes v. Allen, 3 Blackf. 408; Hesler v. Degant, 3 Ind. 501; Rodebaugh v. Hollingsworth, 6 id. 339; Case v. Buckley, 15 Wend. 327. In the latter case, which was an action for slander in charging the plaintiff with having burnt his own barn with intent to defraud an insurance company, the objection was taken that the declaration was bad for want of an averment that the barn was insured against fire; but the court held that such an averment was unnecessary, because the natural meaning and import of the words spoken imputed the crime of arson. So here. The words spoken directly impute to the plaintiff Catharine an attempt to procure a miscarriage of her daughter by administering pills, thus assuming that she had a daughter, and that the daughter was pregnant. There is, therefore, no reason for holding that the existence of a fact should be alleged which the slander itself assumes.

We think the demurrer to the complaint was properly overruled.

By the Court. — Order affirmed.