Dr. Shoop Family Medicine Co. v. Wernich

PiNNey, J. 1. There can be no doubt but that the article set forth in the complaint is libelous per se. As held in Brown v. Vannaman, 85 Wis. 451, “It was a written slander upon the plaintiff’s trade and business, and as such it tended directly to prejudice the plaintiff therein, and hence, within well-established rules of law, was libelous per se.” 2. The allegation in the complaint that the German words-therein set forth, and constituting the libel in question,. “ being translated into the English language read as follows,n setting out the alleged translation in words and figures at. length, is a sufficient allegation that the translation is a correct translation. It would be understood by any person of ordinary intelligence as an assertion, in substance, that the translation was a .true one. The objection is technical. The statute requires that allegations in pleadings “ shall be liberally construed, with a view to substantial justice between the parties.” E. S. sec. 2668. If the defendant considered the allegation indefinite and uncertain, his remedy, to take-advantage of the defect, was by motion to make it more-definite and certain. It is hardly to be conceived that the defendant could have been misled or prejudiced by the allegation in its present form, which is much the same as a like [169] allegation in Schild v. Legler, 82 Wis. 73, and which was regarded as sufficient. 3. The three letters offered in evidence by the plaintiff,, and received, were mere hearsay (Anderson v. Fetzer, 75 Wis. 562), and were not admissible. It was clearly error to receive them in evidence. Two of them contained statements calculated to affect and increase the damages awarded, and we cannot, from the record, say that they did not affect the amount of damages unfavorably to the defendant. The letters were not only objected to, but a motion was made to set aside the verdict on the ground of excessive damages, which was denied. As the evidence admitted was incompetent, there must, in such case, be a new trial, unless it appears that the incompetent evidence did not injuriously affect the result. For the error in admitting the letters in evidence, there must be a new trial. There are no other questions requiring notice. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.