Earley v. Winn

• Decision Date: 09 October 1906
• Citation: 129 Wis. 291,109 N.W. 633
• Parties: EARLEY v. WINN.
• Court: Wisconsin Supreme Court

129 Wis. 291

109 N.W. 633

EARLEY

v.WINN.

Supreme Court of Wisconsin.

Oct. 9, 1906.

Appeal from Circuit Court, Columbia County; E. Ray Stevens, Judge.

Action by Bertha Earley against L. A. Winn. From a judgment for defendant, plaintiff appeals. Reversed.

Action of slander, for that the defendant spoke of and concerning the plaintiff, on October 25th, in the presence of one James Lake and divers other persons, the following: “We want you to come with us to Woods.' Something is wrong. Bertha (meaning this plaintiff) is whipping her mother.” Whereupon the person addressed, the city marshal, with the defendant, repaired to the plaintiff's residence, where defendant said, “Shame, shame, Bertha Wood (meaning this plaintiff), whipping your mother. She abuses her mother, and this isn't the first time either. Why don't she come down and vindicate herself.” The complaint also alleged that the said false and defamatory words were maliciously spoken in the presence of several persons named and divers other persons at divers other times and places. The answer denies the utterance of the libel, and justifies that at the time referred to plaintiff was in fact engaged in the act of whipping her mother, and that any statements of his were made only to persons then present who had knowledge of the fact. The answer further alleges that plaintiff's mother had prior thereto stated to the defendant that she was in danger of injury at the hands of her daughter, the plaintiff, and had requested him to come to her aid in case he should hear any disturbance at the house. A general verdict for the defendant was rendered upon trial, from judgment on which plaintiff brings this appeal.Daniel H. Grady, for appellant.

A. F. Kellogg (Olin & Butler, of counsel), for respondent.

DODGE, J. (after stating the facts).

The exceptions reserved and the assignments of error predicated thereon are very numerous, and many of them will be found unnecessary of consideration. An attempt will be made, as far as possible, to summarize those which present questions relevant to the integrity of the judgment, or likely to arise upon another trial.

1. Several assignments of error rest upon admission of evidence of a general reputation of the plaintiff for quarreling with and illtreating her mother before the utterance of the slander, of which the only actionable words charged the offense of “whipping” her. The law is well settled elsewhere and in Wisconsin that in any attempt to prove reputation, other than general reputation, in mitigation, or, to speak more accurately, in partial denial, of damages, the proof must be confined to reputation in respect to the fault or trait of character involved in the offense charged. B. v. I., 22 Wis. 372, 94 Am. Dec. 604;Wilson v. Noonan, 27 Wis. 598;Wilson v. Young, 31 Wis. 574, 578;Kimball v. Fernandez, 41 Wis. 329; 18 Am. & E. Ency. of Law, 1100. Thus, under charge of fornication, reputation for general unchastity, and, under charge of accepting money to influence action as a state senator, bad reputation for official honesty and integrity, were held admissible. The Wisconsin cases declare that the reputation must relate to the very fault or offense charged in the libel or slander, although text-writers use the expression “trait of character involved.” It is plain from the testimony of several witnesses that they knew of no reputation for physical abuse, such as whipping, but had heard that the mother complained that plaintiff was no daughter to her; that she (the mother) was nothing in the house. Doubtless the same attribute of character involved in any illtreatment is also involved in an assault or whipping, but it may well be argued that other traits, differing not only in degree or intensity but in kind, are to be found in the latter. Illustrations from the authorities, however, seem to bring the objected evidence within the rule. Thus, under charge of perjury, a generally bad reputation for truth and veracity has been sustained (Moyer v. Moyer, 49 Pa. 210); also, under charge of adultery, general reputation for licentiousness and unchastity, though fornication, not criminal (Bridgman v. Hopkins, 34 Vt. 532); under charge of larceny, general reputation for want of honesty and integrity (Warner v. Lockerby, 31 Minn. 421, 18 N. W. 145, 821); charge of embezzlement by jockey of horses' winnings justified general reputation for want of integrity in accounting to employers for the earnings of their horses (Finley v. Widner, 112 Mich. 230, 70 N. W. 433). Illustrations of reputation excluded as not presenting the same traits of character are Cole v. Perry, 8 Cow. (N. Y.) 214; Dillard v. Collins, 25 Grat. (Va.) 343. We conclude, with some hesitation, that no error was committed in admitting against plaintiff the evidence of a general reputation for quarreling with and illtreating her mother.

2. The evidence of reputation was not confined to a period prior to the date of the alleged slander, but, in large part, was in response to questions which apparently related to the time of trial. Later some of the witnesses were recalled, and testified again to the existence of bad reputation prior to the date of the slander, but this left standing the testimony of numerous witnesses that at the time of the trial the plaintiff's reputation was bad for quarreling with and illtreating her mother. Of course such testimony was wholly inadmissible, and probably highly prejudicial as vilification and abuse of the plaintiff, and perhaps, also, inclining the jurors' minds to belief in the truth of the alleged slander. There is some question whether the objections were such as to call the attention of the court to the vice now criticised by the appellant. We shall content ourselves with the above expression of views as to the propriety of such evidence, and presume the question will not present itself again. In the same connection an instruction was requested and refused that only the reputation prior to the slander could be considered upon the question of damages. This, or some equivalent for it, should certainly have been given, but no reversal can be predicated upon this refusal, since the jury found no cause of action to exist; hence, no failure to instruct them as to the measure of damages could be prejudicial.

3. Error is assigned upon admission of proof of specific instances of verbal quarrels between the plaintiff and her mother. On one occasion, about six hours before the time of the alleged whipping set up in the answer; on another, by the testimony of a witness to the entire period from the preceding noon until the time of such supposed whipping at midnight; and again the testimony of the mother herself, generally to the effect that there had been a good deal of trouble in the family within the last three years, and that people had overheard quarrels and disturbances frequently, and that plaintiff had been, when in anger, loud and quarrelsome. This evidence had no bearing whatever on the question whether plaintiff did in fact whip her mother at the specific time alleged, except, possibly, some of the testimony of Woolston, confined to the time of the alleged assault. The fact that high words and jangling were heard twelve hours before or six hours before certainly could not have tendency to prove the fact of physical assault at the time in question. The only other issue presented by the defense was that of the plaintiff's reputation, and no rule is better settled than that specific instances, even of the same acts as those charged in the slander, cannot be proved to establish that issue. Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86, 20 Am. St. Rep. 115;Mahoney v. Belford, 132 Mass. 393. We can conceive no justification for the admission of this evidence, and its prejudicial effect, in tending generally to vilify and discredit plaintiff before the jury, is so entirely obvious that we cannot doubt that in its admission prejudicial error was committed, for which the judgment must be reversed.

4. Error is assigned upon the admission of hearsay evidence, specially the testimony of others as to statements made to them by Mrs. Wood, the plaintiff's mother. Illustrations are: The testimony of the defendant that she said to him, “My life is not safe down there, the way I am treated.” And again, that after the slander she said to him, on one occasion, that she was not allowed to eat at the table with them; that she was treated like a dog, and that Bertha had taken up the very treatment of her that her father had been using for years. Also testimony of Mr. and Mrs. Lake that after the slander Mrs. Wood said to them that she could hardly live with Bertha (plaintiff) and the rest of them, and that she also referred to the night in question as “that night after I got the pounding.” “Got that awful pounding, she said.” It is difficult to conceive of any more improper or prejudicial testimony than this. The plaintiff's witnesses, including Mrs. Wood, had all testified that there was no whipping, striking, or assault on the night in question, and the last quotation from Mrs. Wood tended directly to establish defendant's justification that there was, by conveying to the jury the idea that she had stated that there was pounding that night. Being hearsay, it was excluded by the most elementary rules of evidence. O'Toole v. State. 105 Wis. 18, 80 N. W. 915;Koepke v. City of Milwaukee, 112 Wis. 475, 88 N. W. 238. Apparently this testimony was offered as impeaching Mrs. Wood. but it suffices to say that the reference to receiving a pounding on the night in question was admitted without laying any foundation by asking Mrs. Wood whether she had made the statement or not. As to the other three statements, some attempt at foundation was made, but one of the elementary qualifications of the right to prove statements made by a witness contradictory to her cross-examination is that such statements must be material to the...