Egan v. Semrad

• Decision Date: 28 January 1902
• Parties: EGAN v. SEMRAD.
• Court: Wisconsin Supreme Court

113 Wis. 84

88 N.W. 906

EGAN

v.SEMRAD.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Appeal from circuit court, Iowa county; Geo. Clementson, Judge.

Action by Patrick M. Egan against Joseph Semrad. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

Action to recover compensation for slander. The slanderous utterances claimed are as follows:

(1) “You are a thief and a rogue, you cheated me out of more than one hundred pounds of oats,” meaning and being understood by said parties who were present and within hearing that when the plaintiff sold the defendant oats on the 17th day of February, 1900, that he, the plaintiff, sold him, the defendant, more than one hundred pounds of rocks and sand for oats.

(2) “You are like Stephen Nankee, who sold sand for wheat at Muscoda,” meaning and being understood by said parties who were present and within hearing of said defendant that he, the plaintiff, sold him, the defendant, sand for oats.

(3) “You are a thief and you stole my oats,” meaning and being understood by said parties who were present and within hearing of said defendant, that he, the plaintiff, stole oats from him, the defendant.

The answer contained a general denial. It also contained an admission that at the time alleged in the complaint defendant charged plaintiff with having intentionally sold him rocks for oats. In connection with such admissiondefendant alleged that such charge was made in view of circumstances substantially as follows: Two days before the occurrence mentioned in the answer plaintiff sold defendant some oats. The grain was weighed with the wagon, at which time, without the knowledge of defendant, there were some rocks in the wagon under the bags of oats, and there was also in the wagon box a bag of some material not included in the deal, said rocks and partly filled sack being in the wagon to the knowledge of plaintiff. Before the empty wagon was weighed, plaintiff removed the rocks therefrom.

On the trial there was evidence tending to show that at the time and under the circumstances alleged in the complaint, defendant called plaintiff a thief, but did so under such circumstances as to clearly indicate that he meant only to charge plaintiff with having committed the wrong mentioned in the answer. Plaintiff testified that when on his way to market with the oats one of his wagon tires came off; that he picked up two rocks in or near the road and used them in putting the tire on; that he was obliged to lighten the front end of his wagon by moving the grain sacks back, in order to put the tire in place, and that he deposited the rocks in the wagon box, thinking he might need them again, which he did before selling the oats to defendant; that after unloading the grain and weighing the wagon, he used the rocks a third time as before, and then thoughtlessly threw them on the ground; that when the wagon was weighed the second time everything was in it not theretofore delivered to defendant except the rocks; that on the following day he received his pay for the grain at the place where the same was left for him by defendant; that it was short to some extent; that on the following day he met defendant in a saloon, other persons being present, at which time defendant said in the hearing of such persons: “You are a thief and a rogue, you cheated me out of more than one hundred pounds of oats. You are like Stephen Nankee who sold sand for wheat at Muscoda. You are a thief and you stole my oats.” Such persons, or some of them, testified that defendant charged plaintiff with selling rocks for oats. On the whole, looking at the evidence as unfavorably as one reasonably can for defendant, it only tends to prove that on the occasion in question he publicly declared that plaintiff committed a fraud upon him in respect to the weight of oats sold to him as aforesaid, and did so by means of weighing some rocks and a bag of material not in the deal with the oats.

The court instructed the jury that to say that a man is a thief is slander, and that if they were satisfied from the preponderance of the evidence that defendant charged plaintiff with being a thief, the latter was entitled to recover such sum as would justly compensate him for the injury to his feelings and the indignity put upon him thereby. The jury rendered a verdict in plaintiff's favor for $150. Proper exceptions were taken to preserve for review, among other questions, that of whether the trial court erred in charging the jury that if...