Schild v. Legler

51 N.W. 1099, 82 Wis. 73, 1892 Wisc. LEXIS 112

• Court: Wisconsin Supreme Court
• Decided: April 12, 1892
• Status: Published

Opinion

Cassoday, J.

The slanderous words are alleged to have been spoken in German in the presence and hearing of Regez and others who understood the German language and the words used. The complaint sets out the German words so spoken, and also the translation of the same into English, and is clearly sufficient. Pelzer v. Benish, 67 Wis. 291; Singer v. Bender, 64 Wis. 169; Simonsen v. Herold Co. 61 Wis. 626; K. v. H. 20 Wis. 239; S. C. 91 Am. Dec. 397; Zeig v. Ort, 3 Pin. 30. Tested by the translation, the charge is that “he [meaning the plaintiff] has stolen cheese,” meaning and intending thereby that the plaintiff had been guilty of the crime of larceny. It was for the court to determine whether the words alleged were capable of the meaning ascribed to them by the innuendoes, and for the jury to decide whether such meaning was truly ascribed to them. Campbell v. Campbell, 54 Wis. 94, 95; Bradley v. Cramer, 59 Wis. 312; Gauvreau v. Superior Pub. Co. 62 Wis. 408; Moley v. Barager, 11 Wis. 44.

The contention is that there is a fatal variance between the words alleged and those proved. There is plenty of evidence tending to prove that the defendant Mary, at Monroe, in the presence and hearing of Eegez, and while addressing him and others in the German or Swiss-German language, spoke of and concerning the plaintiff words which, when translated into English, were as follows: “ He has stolen cheese,” and other words to the same effect; that at the same place, and in the same presence and hearing, the said Mary said to the plaintiff personally, in the German or Swiss-German language, words which when translated into English were as follows: “You have stolen cheese,” and other words to the same effect. Thus the plaintiff proved the very words alleged in English, and several other expressions of substantially the same import. It is true the precise German words alleged were not proved, but there is no evidence that the English translation alleged is not substantially correct, and we cannot assume, as a matter of law, that such translation is incorrect merely because the evidence shows that substantially the same translation is given to somewhat different German of Swiss-German words. This court has held, in effect, in one of the cases ‘cited, that, even when the German words alleged are actionable per se, yet, if the English translation is not, the complaint is insufficient. In other words, the sufficiency of the complaint is to be tested by the English translation alleged; and, in the absence of any evidence of the incorrectness of such English translation, we are constrained to hold that the question of variance is to be tested bjr the same standard. Especially should this be the rule under our statute, which declares that “ no variance between the allegation in a pleading and the proof shall be deemed material unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense upon its merits.” Sec. 2669, E. S. The accuracy of such alleged English translation is a question of fact for the jury, as well as the accuracy of the English translation of the words actually spoken.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.