#### Delaney, Respondent, vs. Kaetel, Appellant.

*February 4*

*February 23, 1892.*

SLANDER. (I) *Evidence: Mitigation of damages." (2, 8) Instructions to jury: Malice: Restricted meaning of words.*

1. In an action for slander it was alleged that the defendant said of the plaintiff: “ He would steal or rob anybody.” “ He is a thief, and has stolen my money.” “He is a rascal, scoundrel, and thief.” Defendant sought to show by a witness other than himself that prior to the alleged slander the plaintiff had said that if he went to Congress he would feather his nest or would fill his pockets. *Held,*that the evidence wás not admissible, even in mitigation of damages.

¡2, It was not error to instruct the jury that the law implies malice from the utterance of the actionable words, where they were further instructed that exemplary damages could only be recovered on proof of *actual*malice.

*3548. The defendant having claimed that the words spoken were used in a restricted sense and so as not to impute a crime, it was proper to instruct the jury that in order to amount to a defense it must be shown that all who heard the words spoken understood them in some restricted or mitigated sense.

APPEAL from tbe Circuit Court for *Dodge*County.

Action for slander. Tbe facts are sufficiently stated in tbe opinion. There was a verdict in favor of tbe plaintiff, assessing bis damages at $1,500, and from tbe judgment thereon the defendant appealed.

Eor tbe appellant tbe cause was submitted on tbe brief of *Barney da Kueehenmeister.*

To tbe point that tbe trial court erred in rejecting tbe evidence of statements made by tbe plaintiff “ that if be went to Congress be would feather bis nest or would fill bis pockets,” they cited Town-sbend, Slander & L. sec. 409; *Bush v.*Prosser, 11 N. T. 347; *Lawler v. Earle,*5 Allen, 22; *Eviston v. Ora/mer,*54 Wis. 220.

Eor tbe respondent there was a brief by *WinJder, Flcm-ders, Smith, Bottnm da Vilas,*and oral argument by *E. P. Vilas.*

OetoN, J.

This is an action of slander for the following words spoken of tbe plaintiff by tbe defendant, omitting tbe profane adjectives, viz.: *“ He*would steal or rob anybody.” “ He is a thief, and has stolen my money.” “ He is a rascal, scoundrel, and thief.” Tbe errors relied on to reverse tbe judgment in favor of tbe plaintiff will be considered in their order:

1. It is alleged in tbe defendant’s answer, in mitigation of damages, that tbe plaintiff bad said, prior to tbe speaking of tbe said words, that be only wanted to go to Washington one term, “ and see if I don’t feather my nest; ” and that be wanted to be elected once to Congress, “ and see if I don’t fill my pockets.” The witness Bruederle was asked *355by defendant’s counsel if be beard tbe plaintiff, in October, 1886, say, “if be went to Congress be would feather bis. nest or would fill bis pockets.” Tbis question was ruled, out, on objection by plaintiff’s counsel, and tbis is assigned as error. Tbis grandiloquent statement of tbe plaintiff, if true, does not necessarily or even reasonably mean that be intended to get anything dishonestly, and much less to steal it, if be should go to Congress. This evidence would not, mitigate tbe speaking of tbe above words, because (1) the-defendant did not refer to it as authority for speaking them *(Haskins v. Lumsden,*10 Wis. 359); and (2) it bears no relation to the offense charged *(Wilson v.*Noonan, 27 Wis. 598). It was properly rejected.

2. That part of tbe instructions of tbe court in which it is said that “ the law implies malice in such cases from tbe utterance of such mere actionable words” is excepted to as, erroneous. It was strictly correct, according to all tbe authorities. *Brueshaber v. Hertling,*78 Wis. 498. Tbe court, did not say that such implied malice would entitle the plaintiff to recover exemplary damages. Tbe court instructed tbe jury, and reiterated it, that tbe plaintiff could; recover exemplary damages only on proof of *actual*malice, or malice in *faot.*

3. Tbe appel]ant complains that tbe court did not fairly submit to tbe jury tbe question whether tbe words were used in a restricted sense. Tbe court instructed tbe jury more than once that they should consider whether tbe words were not used in reference to transactions less than criminal, and explained in that way. The court, very particularly restated tbe evidence of the conduct of tbe plaintiff in relation to which tbe defendant spoke tbe words, and clearly submitted to tbe jury the question whether tbe words were not used in that sense. Besides tbis, tbe court gave tbe instruction asked by tbe defendant’s counsel “ that it is allowable to show that the defend*356ant at the time of the speaking of the words made such explanations • as took away the imputation of crime, or to show that the words spoken had reference to 'a transaction known and understood to be not a crime.” But the court very properly instructed the jury further, “ that in order to amount to a defense it must be shown that all who heard the words spoken understood them in some restricted or mitigated sense.” It would certainly make no difference if the defendant spoke the words in reference to some transaction not criminal, unless those who heard them spoken understood that they were used in that sense. This qualification is also excepted to, but it was clearly correct. *Bradley v. Cramer,*59 Wis. 309; *Campbell v. Campbell,*54 Wis. 90.

There are many criticisms of the instructions of the court to the jury generally in the brief of the learned counsel of the appellant, but no others pointed out specifically as being erroneous. The charge of the court is unusually full and elaborate, covering fifteen pages and forty-four folios of the case, and it is very favorable to the defendant throughout, and gives him every possible advantage of his defense.

*We*find no error in the record.

*By the*Court,— The judgment of the circuit court is affirmed.