Mallon v. Tonn

157 N.W. 1098, 163 Wis. 366, 1916 Wisc. LEXIS 260

• Court: Wisconsin Supreme Court
• Decided: May 23, 1916
• Status: Published

Opinion

WiNslow, C. I.

The objection should not have been sustained. It was a criminal offense to hunt deer in any part of the state at any time except during the last twenty days of November, and in the county of Sauk (among others) even this period was not excepted and there was no open season. Sec. 4562J, Stats. 1913.

It is clear that the second count sets forth a perfectly good cause of action. The libelous letter therein contained charges •that the plaintiff hunted deer in December and demands that he go to Baraboo and settle or he will be prosecuted. It was unlawful to hunt deer at any place in the state at that time and the presumption would certainly be that the hunting was done in the state; but furthermore, the warning that settlement must be made at Baraboo (the county seat of Sauk county) makes it perfectly clear to any person that the charge was that the hunting was done in Sauk county. As this was a direct charge of the commission of a criminal offense it was per se libelous. No authorities are needed to substantiate this familiar principle.

As to the first count the question is not so clear, but we think a liberal construction of the complaint, which should always be indulged in in case of a demurrer ore tenus, leads to the same result. Here was also a threat that unless the plaintiff’s hunting companion went to Baraboo and paid his fine he would be prosecuted, and the presumption that hunting was done in Sauk county necessarily follows. If there were doubt about this, however, the court should Have granted the motion of -the plaintiff, wliicb was at once made, for leave to amend the complaint by alleging that the words were intended by the plaintiff and .understood by the hearers to charge that the hunting was done in Sauk county. Inasmuch as the answer admits the speaking of the words alleged and admits that defendant thereby intended to charge illegal deer-hunting in Sauk county, no surprise could be claimed at such an amendment. The time has gone by when.amendments on the trial are to be viewed with suspicion and granted grudgingly. If it appears that the proposed amendment tends to bring the real controversy between the parties fairly before the court, the amendment should always be allowed, opportunity being given to the opposing party to meet it in case of surprise.

By the Gourt. — Judgment reversed, and action remanded for a new trial.