Hacker v. Heiney

• Decision Date: 24 September 1901
• Citation: 111 Wis. 313,87 N.W. 249
• Parties: HACKER v. HEINEY.
• Court: Wisconsin Supreme Court

111 Wis. 313

87 N.W. 249

HACKER

v.HEINEY.

Supreme Court of Wisconsin.

Sept. 24, 1901.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Bertha Hacker against Emma Heiney. From a judgment in favor of plaintiff, defendant appealed. Affirmed.

Action for slander, in which it was alleged that the defendant spoke of and concerning the plaintiff, on the 15th day of August, 1899, the words, “She is a whore,” in the presence of Robert C. Hacker and divers other persons;and that on or about the same day, in the presence of Mrs. Frank Heiney and others, she spoke the words, “There goes that white-headed whore;” and that on the 9th of December of the same year, to the plaintiff, in the presence of her husband, defendant said, “I have reasons for calling you a whore.” The answer merely denied the speaking of the words at any time. Testimony was given of the speaking of the words alleged as slanderous at or about the time set forth in the complaint, and also of substantial repetitions of the charge on various other occasions. The court submitted the case to the jury, with directions permitting both compensatory and exemplary damages, and a verdict of $1,600 was returned, from which, on motion for a new trial, the plaintiff was required to remit $1,000, which she did, whereupon the motion for a new trial was overruled and judgment entered for $600 damages and costs, from which the defendant appeals.

Bashford, Aylward & Spensley, for appellant.

Jones & Stevens, for respondent.

DODGE, J. (after stating the facts).

The alleged errors discussed by appellant are numerous, and several of them so obviously ill assigned or immaterial as to require but passing mention. Exception was taken to a statement of respondent's attorney in his opening that a witness (Hacker) had heard defendant quarreling with her husband, and accusing him of improper relations with plaintiff. The assertion was fully supported by the testimony of Hacker, who details several connubial clashes very fairly satisfying the designation “quarrels,” and in one answer he categorically asserts that “as they were quarreling she used to say, ‘You always go out whoring,’ ” etc. Complaint is made that the court ruled, while appellant's counsel was opening his case, that he would not be allowed to show trouble with this witness Hacker. That ruling was, however, upon argument, immediately withdrawn, and the question reserved till Hacker should be on the stand. At that stage no adverse ruling was made.

Plaintiff's witnesses were allowed to testify to substantial repetitions of the defamations at times other than those specified in the complaint. Appellant urges that such testimony should have been admitted only as tending to prove express malice. We find, however, that, when objection to this class of testimony was first suggested in plaintiff's opening, the court did rule that such was the ground of its admissibility. In this position the court was correct. Born v. Rosenow, 84 Wis. 620, 54 N. W. 1089. If defendant desired that restriction further impressed on the jury, a request therefor should have been made.

Error is assigned on failure of the court to give the jury an instruction not reduced to writing, nor even to words, but of which merely the general idea was suggested orally by appellant. Specific error can be assigned only upon refusal to give an instruction formally requested in writing. Section 2853, Rev. St. 1898, evidently contemplates this protection to the trial court in commanding that a requested instruction be given in its exact words or refused in toto. Of course, there may be issues so vital that omission of any instruction whatever thereon is itself error unless excused by a party's failure to call attention to it. Hennesey v. Railway Co., 99 Wis. 109, 74 N. W. 554;Dugal v. City of Chippewa Falls, 101 Wis. 533, 77 N. W. 878. But that rule has no application to the request in this case, which related merely to a detail of evidence. Further than this, however, we find that the court did in fact adequately convey the suggested idea in the charge which he gave.

The contention that the amount of recovery is excessive cannot be considered seriously. We are not prepared to say that $600 is in excess of even reasonable compensatory damages to the reputation and feelings of a virtuous and reputable married woman from the repeated charge of whoredom. Far more impossible is it to hold such sum excessive where the jury may well have found express malice, and been entitled to include in their verdict a measure of punishment for such gross and unjustifiable conduct as the defendant's.

Error is assigned upon the admission of certain testimony of the witness Robert Hacker, as follows: He had described an occasion when defendant's husband went down to Otto Hacker's (plaintiff's husband's) house for rubber boots, and on his return was greeted by defendant with the words, “You have been out whoring again.” Witness was then asked, “Whom did you understand that she referred to?” and answered, over objection and exception, “Why, it was Bertha [plaintiff], because he went down to that place after the boots.” It is undoubtedly erroneous to permit a witness to testify to his understanding of the words charged as slander. Townsh. Sland. & L. § 375a; Kidd v. Fleek, 47 Wis. 443, 2 N. W. 1121. In this instance, however, the words under consideration were not among those charged as slander in the complaint, but were merely one of several repetitions of the same charge against the plaintiff, offered and received as tending to prove express malice, and having relation, not to defendant's guilt, but to the question of exemplary damages. If any error was committed in admitting this evidence, its effect upon the verdict could have been hardly appreciable, for numerous other repetitions were fully proved. We are satisfied that, if any enhancement of the verdict could be ascribed to this evidence, the $1,000 remission made in the court below wholly eliminated it from the judgment now appealed from, and that defendant has suffered no prejudice. Counsel asserts that the same error was committed in the examination of Maria Heiney, but an examination of the printed case fails to verify the statement.

After defendant had testified to years of ill health, she was asked whether such illness had caused her to be very jealous of her husband, which question was excluded. The relevancy of the inquiry is not apparent, unless as tending to mitigate damages. It could not be admitted for that purpose, for no such fact was pleaded. Langton v. Hagerty, 35 Wis. 150; Wilson v. Noonan, Id. 321; Reiley v. Timme, 53 Wis. 63, 10 N. W. 5.

Appellant urges that nonsuit should have been granted, because plaintiff suffered no actual damages. This position is not easy to understand. The authorities are overwhelming to the proposition that from the speaking of words actionable per se a presumption of actual damage arises. Candrian v. Miller, 98 Wis. 164, 167, 73 N. W. 1004. In this state an oral charge of unchastity is actionable per se. Mayer v. Schleichter, 29 Wis. 646. The conclusion follows, without further proof, that plaintiff suffered those general damages which are the natural and necessary result...