Geary v. Bennett

• Decision Date: 16 March 1886
• Citation: 65 Wis. 554,27 N.W. 335
• Parties: GEARY v. BENNETT.
• Court: Wisconsin Supreme Court

65 Wis. 554

27 N.W. 335

GEARY

v.BENNETT.

Supreme Court of Wisconsin.

Filed March 16, 1886.

Appeal from circuit court, Fond du Lac county.

F. F. Duffy, for appellant.

George E. Sutherland, for respondent.

ORTON, J.

This was an action for slander, brought by the appellant against the respondent, to recover damages for the speaking of the following words on the tenth day of June, 1880: “There is foreign substance in your milk, similar to water; and it is water.” “The amount of water in your milk is one-eighth to one-tenth.” And for the speaking the following words to Edward Dolan, between the tenth and fifteenth days of June, 1880: “His milk is watered.” “The watering of his milk by him, [plaintiff,] when brought to the factory, was a loss to him [the defendant] of seventy-five cents per day, by reason of the water added.” And to one J. D. Watters, between said last-mentioned days, the following words: “Geary's milk is watered.” These are the only words charged in the complaint. The defendant demurred to the complaint because it stated no cause of action, and the demurrer was overruled, and, on appeal to this court, the order overruling the demurrer was affirmed, (53 Wis. 444, and 10 N. W. Rep. 602,) on the sole ground that the words, “The watering of his milk by him, [plaintiff,] when brought to the factory, was a loss to him [defendant] of seventy-five cents per day, by reason of the water added,” imputed an offense. This court held that the clause “the watering of his milk by him [plaintiff]” imputed to the plaintiff the offense described in section 4607, Rev. St., of knowingly selling, furnishing, supplying, or bringing, to be manufactured, to any butter or cheese factory, or to any person to be used in the manufacture of butter or cheese, or to be used in any other manner, any milk, etc., that has been diluted with water, etc. The watering of his milk by him charged the gist of the offense,--that he “knowingly” did it.

The point was made in the brief of the respondent's counsel, on the argument of the case at that time, that the complaint was good, even if it did not impute said crime, by charging the words as an injury to plaintiff's business, and this point was met by the appellant's counsel, in their brief, by the argument that no such injury to the plaintiff's business was charged, or any damages alleged by reason thereof. The decision of that question may not be res adjudicata in the case, but it was certainly not regarded as of any importance on the argument of the demurrer, and was therefore not noticed in the opinion. It may be well to say here that the same point, again raised on this appeal, cannot be sustained. (1) The plaintiff does not allege any principal business of his in which he was injured, or concerning which the words were spoken; and (2) he does not claim any damages on account of the same. There are general allegations in the last part of the complaint of words which perhaps may impute the offense, but they are charged as of no particular time or place, and in the presence or hearing of no particular persons; and the plaintiff's counsel, on the argument of the former appeal, did not claim that they were properly charged, and he did not rely upon them, and they were not noticed at all by the defendant's counsel. They must therefore be regarded as having no materiality in sustaining the complaint. These two points will not be considered...