Campbell v. Campbell

• Decision Date: 10 January 1882
• Citation: 54 Wis. 90,11 N.W. 456
• Parties: CAMPBELL v. CAMPBELL.
• Court: Wisconsin Supreme Court

54 Wis. 90

11 N.W. 456

CAMPBELL

v.CAMPBELL.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Outagamie county.

This is an action for damages for speaking of and concerning the plaintiff the words “She is slow poisoning her husband,” thereby meaning that she was feloniously and maliciously administering poison to her husband, a brother of the defendant, and then very sick, with the intent to kill and murder him. The verdict on the trial was for the plaintiff, and from the judgment entered thereon this appeal is brought.W. J. Allen and Kennedy & Hammel, for defendant.

Barnes & Goodland, for appellant.

CASSODAY, J.

It is urged that the words spoken were not slanderous per se, and that their meaning could not be enlarged by innuendoes, and as there was no proof of special damage the verdict must be set aside as against evidence. It was held by Lord Holt, C. J., that the court “would give no favor to words, and would give satisfaction to them whose reputation is hurt; and would take words in a common sense according to the vulgar intendment of the bystanders. The rule de mitiori sensu is to be understood, where the words in their natural import are doubtful, and equally to be understood in the one sense as in the other.” Somers v. House, Holt, 39.

In a much later case, the same court, per Lord Ellenborough, C. J., said: “Words are now construed by courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understood them.” Roberts v. Camden, 9 East, 95. So in Hankinson v. Bilby, 16 M. & W. 443, Parke, B., giving the true test, said: “First ascertain the meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them.”

In Peake v. Oldham, 1 Cowper, 275, affirming the same case in error from the common pleas, Lord Mansfield, C. J., held the speaking of the words, “I am thoroughly convinced that you are guilty, and rather than you should go without a hangman I will hang you,” with innuendoes, sufficient to sustain a verdict for the plaintiff. In that case it was said by the court at common pleas that “it [the innuendo] is not, therefore, contradictory, but explanatory; not introductory of new matter, but ascertaining the meaning of the old, and limiting the general word ‘death’ to one particular species of it, ‘murder.’ The innuendo is therefore sufficiently regular; whether it was true or not that such was the defendant's meaning was a fact for the jury to decide upon.” 2 W. Bl. 961. In giving the opinion the chief justice refers to and follows the old case of Ward v. Reynolds, where the gist of what the defendant said to the plaintiff was, “He [your husband] died of a wound you gave him;” and it was held the jury were justified in finding “that the defendant meant a charge of murder.” The chief justice then, referring to the case before him, added: “So, here, if shown to be innocently spoken, the jury might have found a verdict for the defendant; but they have put a contrary construction upon the words as laid,” and therefore the judgment was affirmed. 1 Cowper, 298. That ruling was subsequently sanctioned in Roberts v. Camden, supra.

In Blagg v. Sturt, 10 Ad. & Ell. (N. S.) 899, it was “held by the court of exchequer chamber, affirming the judgment of the Queen's Bench, that it is for the judge to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to decide whether such meaning is truly ascribed to it.” See, also, Strader v. Snyder, 67 Ill. 406;Goodrich v. Davis, 11 Metc. 473; Montgomery v. Duley, 3 Wis. 709;Weil v. Schmidt, 28 Wis. 137.

This case seems to be clearly distinguishable from Frank v. Dunning, 38 Wis. 270;Weil v. Altenhofen, 26 Wis. 708;Vliet v. Rowe, 1 Pin. 413;Bloss v. Tobey, 2 Pick. 320;Carter v. Andrews, 16 Pick. 1;Snell v. Snow, 13 Metc. 278. It is more analogous to Weil v. Schmidt, 28 Wis. 137;Cottrill v. Cramer, 43 Wis. 242; and particularly Ward v. Reynold and Peake v. Oldham, supra; Geary v. Bennett, (Wis.) 10 N. W. REP. 602. In the case last cited the slanderous words spoken were: “There is a foreign substance in your milk, similar to water, and it is watered;” and they were held on demurrer, in view of our statute, actionable per se. Here the defendant charged the plaintiff during the last sickness of her husband, and when she was his sole nurse, with “slow poisoning her husband.”

Under our statute, the administering of poison in food, drink, or medicine, with the intent to kill or injure a human being, is a crime punishable by confinement in the state prison. Sections 4384, 4374, 4337, Rev. St. Here the evidence tends to prove that the defendant, on being asked the condition of his brother, replied: “She is slow poisoning him, the termagon;” or, “That termagon is slow poisoning him;” or, “He is failing, and she, I think, is dosing him with slow poison.” Then, on being asked why he did not “see into it,” or “look about it,” he answered: “Wait till he is dead; my brother in Oshkosh will skin her alive, and I will see her in prison;” or, “Wait; if he dies, my brother in Oshkosh will skin her alive, and I will have her in prison--in state's prison.” The objection that the plaintiff was allowed to testify that she supposed the defendant referred to her when he used the word “termagon,” would seem not to be well taken, especially as she testified in another connection that in the conversation “my name was mentioned,” “the conversation referred to my husband and myself,” and all the evidence tended to show it could not refer to any one else. Opinions of witnesses as to whom pronouns and ambiguous words applied have, however, been allowed by the courts. Miller v. Butler, 6 Cush. 72;Leonard v. Allen, 11 Cush. 241; 2 Greenl. Ev. § 417. It seems, however, that before a witness will be allowed to give his opinion that words were used in some other than their ordinary sense, the foundation must first be laid by proving facts giving a peculiar character to the expression used. Davies v. Hartley, 3 Exch. 200. But here the error, if any, was cured by the nature of the evidence given.

Within the rule laid down by the exchequer chamber, with the sanction of Lord Denman, C. J., above quoted, and which we approve, it would seem that the trial court here could not do otherwise than to hold that the words spoken were capable of the meaning ascribed to them by the innuendoes, and that the jury were justified by the evidence in holding that such meaning was truly ascribed to them. This being so, the nonsuit was properly denied. If it be conceded that we are correct in this, it...