Reiley v. Timm

• Decision Date: 27 September 1881
• Parties: REILEY v. TIMM.
• Court: Wisconsin Supreme Court

53 Wis. 63

10 N.W. 5

REILEY

v.TIMM.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from county court, Milwaukee county.

Ludwig & Somers, for respondent.

Johnson, Rietbrock & Halsey, for appellant.

CASSODAY, J.

This is an action of slander. We think there was evidence tending to prove the speaking of the slanderous words substantially as alleged. It seems to be well settled under our statute (section 2678, Rev. St.) that affirmative proof of mitigating circumstances cannot in general be given in evidence without being specially pleaded. Wilson v. Noonan, 35 Wis. 322;Langton v. Hagerty, Id. 151. This being the rule, the court properly excluded the evidence offered by the defendant in mitigation of damages. The plaintiff was allowed to prove, however, against the objection of the defendant, that about the time of speaking the words the defendant caused him to be arrested for the alleged theft referred to in the slander. The defendant then offered evidence tending to explain the circumstances under which he caused the arrest to be made,--not in mitigation of damages caused by the slander, but to show good faith and want of malice on his part in the matter of the arrest,--and that in causing the arrest to be made he had acted under a mistake and upon unfounded information. This offer was made to rebut the inference of express malice, inferable from the plaintiff's proof of the arrest. This offer was excluded by the court. These rulings were excepted to, and are assigned as error.

The evidence given by the plaintiff of the arrest, could only be admissible as tending to show express malice, and thus aggravating the damages. If evidence of such fact could be properly admitted on the part of the plaintiff without pleading it, to raise the presumption of malice in the defendant, then there would seem to be no good reason why the defendant, without pleading the same, should not have been allowed to disprove or explain the circumstances under which the arrest occurred, to rebut such presumption. Certainly he was not precluded by any allegations in the answer, because neither the answer nor the complaint make any reference to the arrest. It would be a harsh rule, indeed, to allow one party to give evidence of a collateral fact, not pleaded by either, and then hold the other party concluded by the proof made by his adversary. On the other hand, if we were to take the same view as suggested by counsel for the respondent, and hold that...