Egan v. Semrad

MARShalx, J. The trial court evidently concluded that, though the evidence warranted submitting the case to the jury on the question of whether defendant charged plaintiff with being guilty of obtaining money under false pretenses, the complaint was not broad enough to cover any charge other than that he accused plaintiff, in the presence and hearing of others, with having committed the crime of larceny ; and that, as no application was made to amend the pleading in accordance with the evidence, all of which was admitted without objection, and in accordance with the admission contained in the answer, the cause should be left to stand on the issue as to whether defendant asserted, as alleged, that plaintiff was a thief. We will not overrule the circuit court’s construction of the pleading. It does not so clearly appear, by the language of the complaint and the reasonable inferences to be drawn therefrom, that the pleader purposed thereby to charge that defendant asserted, on the occasion mentioned, that the former intentionally falsely represented the weight of the oats which he sold to the latter, that we should overrule the learned circuit judge on that question. It follows that, if the independent statement contained in the pleading, that defendant, as therein alleged, charged the plaintiff with being a thief — in other words, with having committed the crime of larceny — was not sufficiently established by the evidence to carry the issue in that regard to the jury, then there is no sufficient ground for the recovery appealed from. The foregoing leads to an examination of the instructions submitting the issue of whether defendant charged plaintiff with having committed the crime of larceny. The learned [88] court said to the jury, in effect, that if defendant called plaintiff a thief, he accused him of having committed the crime of larceny. Manifestly, that was wrong, as applied to the evidence in this case, True, to say that a man is a thief, without any qualifying language or circumstances indicating to the contrary, is to say that he is guilty of having committed the crime of larceny, but the word “thief” when applied to a responsible human being does not necessarily impute to him either the crime of larceny or any other criminal offense. If it is so applied under such circumstances as to show that a criminal sense is not intended, the language is not actionable per se. There is no principle of the law of slander and libel better settled than that. The learned circuit court seems to have supposed that to say of another that he is a thief, regardless of circumstances, is to charge him with having committed the crime of larceny. There can be no mistake about that, as it seems, since, while the evidence tended to show that defendant, on the occasion in question, applied the word “thief” to plaintiff, he unquestionably did so with reference to the circumstance claimed to have occurred of having sold rocks for oats, and it was so understood by all persons who were present at the time. It seems that we would not be justified in spending much time demonstrating what has been said as to the word “thief” not necessarily imputing the crime of larceny. The test on the subject in Townshend, Slander & L. 151, with such changes as to harmonize it with our system, under which language used of and concerning another in the presence and hearing of third persons, falsely charging such other with having committed a criminal offense, though it be less.than a felony, is actionable per se, may be read as follows: To call one a thief is not actionable unless it is intended to impute to him a criminal offense. Unexplained it will be considered in a criminal sense, but it is subject to explanation [89] by the context. In Stern v. Katz, 38 Wis. 136, this language was used by the defendant: “He (meaning the plaintiff) is a swindler and a thief and stole $8,000 from me.” It was held that the words, explained by the circumstances under which they were used, meant that the plaintiff, who was a partner of the defendant, had defrauded the latter by false entries upon the partnership books, not that he had committed the crime of larceny, and that they were not actionable per se. In Filber v. Dautermann, 28 Wis. 134, the alleged slanderous words were: “You have cheated and robbed orphan children out of fourteen hundred dollars.” The complaint showed that the words were used in such circumstances as to indicate that the defendant meant that plaintiff committed the crime of larceny in the sense that he took the assignment of a note and mortgage from another, agreeing as the consideration thereof to support such other during his natural life; that the duration of such other’s life was such that the plaintiff made a substantial profit by the ■transaction, and that he thereby obtained property from the assignor which would otherwise hare gone to his minor children. It was held that the language, under the circumstances, did not impute to the plaintiff a crime and was not actionable per se. In deciding the case this court said, in effect, that while to say of another that he is a robber or stole from a third person, unexplained, is to impute to such other a criminal offense, in the circumstances under which the language in question was used it could not be said to impute any criminal offense. The illustrations given render further discussion of the subject before us unnecessary. It is clear that the trial court erred in holding as a matter of law that, if the defendant used the word “thief” with reference to the plaintiff on the occasion in question, he was guilty of an actionable wrong. [90] There was really no question on the evidence as the pleadings stood, to go to the jury. By the Oourt. — The judgment of the circuit court is ref-versed and the cause remanded for a new trial.