Brueshaber v. Hertling & Husband

Lyoh, J. No testimony was given on tbe trial showing or tending to show that tbe alleged slanderous words were spoken by tbe defendant Mina on October 23, 1881, or in tbe city of Milwaukee, or to numerous persons, as alleged in tbe complaint, but tbe testimony is conclusive that they were spoken by ber (if at all) only to one person, several weeks after October 23, 1881, and in tbe county of Wau-kesha. Because of these variances between tbe averments of tbe complaint and tbe proofs on tbe trial, tbe defendants claim a reversal of tbe judgment. The gravamen of tbe action is tbe speaking of tbe slanderous words. These must be proved as laid in tbe complaint, or tbe action fails. But tbe plaintiff is never held to strict proof of tbe averments in tbe complaint of tbe time and place when and where tbe slanderous words were spoken. If it appears from tbe testimony that they were uttered by tbe defendant at a time or place different from that stated in tbe complaint, tbe variance is not necessarily fatal to tbe action. If, however, tbe variance misleads tbe defendant to bis prejudice, be should satisfy tbe court of tbe fact by proof, and tbe court will thereupon order tbe complaint amended, and, if essential to bis protection, continue tbe cause at the cost of plaintiff. Tbe practice in such cases is indicated in sec. 2669, E. S. In tbe present case, tbe defendants did not claim to have been misled by such variances, and offered no such proof; hence tbe variance is immaterial, and tbe court correctly so instructed tbe jury. Geary v. Bennett, 65 Wis. 554, is relied upon by counsel for defendants as laying down a different rule, but there tbe variance went to tbe cause of action itself,— not merely to tbe incidental matters of time and place. This observation is applicable to other cases cited to tbe same proposition. Tbe cause of action was complete when tbe defendant Mina, spoke tbe slanderous words charged in tbe complaint to a single person, and tbe plaintiff was not required further [501] to prove the averment that she uttered the same to a number of persons. Neither was it essential to the plaintiff’s right to recover in the action to prove express malice on the part of Mina. Malice is implied in the utterance of the slanderous words, and it is not necessary to prove it by evidence aliunde. The law on these points is so entirely settled that it would be little short of affectation to discuss them or cite adjudications to support them. Other errors are assigned, but are not relied upon in the argument of counsel. Ye think none of them are well assigned. These require no further notice. By the Court.— The judgment of the circuit court is affirmed.