Geary v. Bennett

• Decision Date: 22 November 1881
• Citation: 53 Wis. 444,10 N.W. 602
• Parties: GEARY v. BENNETT.
• Court: Wisconsin Supreme Court

53 Wis. 444

10 N.W. 602

GEARY

v.BENNETT.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Fond du Lac county.

Conklin & Duffy, for respondent.

Geo. E. Sutherland, for appellant.

TAYLOR, J.

This is an action for verbal slander. The complaint alleges that the appellant falsely and maliciously, in the presence and hearing of divers good and worthy citizens, spoke and published of and concerning the respondent, and of and concerning his business, the following false, scandalous, malicious, and defamatory words, viz.: “There is foreign substance in your milk, similar to water, and it is water. The amount of water in your milk is one-eighth or one-tenth.” That at another time the appellant spoke to one Edward Dolan, a citizen and neighbor of the said respondent, the following false, malicious, and scandalous words: “His [meaning plaintiff's] milk is watered, and that the watering of his [plaintiff's] milk by him [plaintiff] when brought to the factory was a loss to him [defendant] of 75 cents per day by reason of the water added.” That at another time the appellant spoke to one J. D. Walters, a good and worthy citizen, the following false, malicious, and defamatory words, viz.: “Geary's [the plaintiff meaning] milk is watered.”

The complaint further shows that the respondent was a farmer, and, among other things, was in the habit of furnishing daily large quantities of milk to a certain butter or cheese factory in the town of Oakfield, operated and managed by the appellant and others, and that the alleged slanderous words were spoken of the respondent and of the milk so furnished by him to said factory. The appellant demurred to the complaint for the reason that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the circuit court, and from the order overruling such demurrer the defendant appeals to this court. The learned counsel for the appellant insists that the words spoken are not actionable per se, because they do not charge the respondent with the commission of any offence involving moral turpitude, and for which if convicted he could be subjected to an infamous punishment. Section 4607, Rev. St. 1878, provides: “Any person who shall knowingly sell, furnish, supply, or bring 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 drawn from a cow not in a proper condition of health, or too near, either before or after, the time of calving, or any milk which is adulterated by any deleterious or contaminated by any filthy substance, or any milk which has been skimmed or with the strippings left out of it, or that has been diluted with water or colored by any substance, or which has become filthy by careless milking or handling, or tainted or partly sour for want of proper care in keeping pails, strainers, or any vessels in which said milk is kept clean and sweet, after notice of such taint or carelessness, or failure to keep vessels, pails, and strainers clean and sweet, shall be punished by imprisonment in the county jail not more than 30 days, or by fine not exceeding $100.”

It will be seen that this statute makes it an offence punishable by fine or imprisonment in the county jail to knowingly furnish watered milk to any factory to be manufactured into cheese or butter. The offence defined in this section is clearly one involving moral turpitude, and is punishable by an infamous punishment, within the meaning of the rule above stated. This court has repeatedly held that to charge a person with an offence punishable in like manner as above stated is slanderous, and actionable per se....