#### Brueshaber, Respondent, vs. Hertling and husband, Appellants.

*December 19, 1890*

*January 13, 1891.*

*Slander: Variance: Time and place: Malice.*

1. Proof that the slanderous words were spoken a few weeks after the date alleged in the complaint and in a different county, does not constitute a material variance, in the absence of any claim or proof by the defendant that he was misled thereby. *Geary v. Bennett,*65 Wis. 554, distinguished.

2. Malice is implied in the utterance of the slanderous words, and need not be proved by evidence *aliunde.*

*499APPEAL from the Circuit Court for *Milwaukee*County.

Action for slander. The slanderous words are set out in the complaint, and it is alleged therein that they were maliciously spoken by the defendant *Mina Hertling*of and concerning the plaintiff to a number of persons, on or about October 23, 1887, at the city of Milwaukee. The plaintiff is a married woman, and such words impute to her the crime of adultery. The answer is a general denial.

On the trial, one Bertha Jentzen, a sister of the defendant *Mima,*testified that a few weeks after October 23, 1887, in Waukesha county, *Mina*spoke to her, of and concerning the plaintiff, the alleged slanderous words stated in the complaint. This was denied by *Mina*in her testimony. It is not understood that any testimony was given of any other uttering of such slanderous words by *Mina.*The jury found for the plaintiff, and assessed her damages at $200. A motion for a new trial was denied, and judgment entered for the plaintiff pursuant to the verdict. The defendants appealed from the judgment.

The cause was submitted for the appellants on the brief of *Hath,. Pereles & Sons,*and for the respondent on that of *Fiebing (& EillAlea.*

To the point that the variance between the proof and the allegations in the complaint was fatal to the plaintiff’s cause of action, counsel for the appellants cited 1 Greenl. Evi. sec. 61; 2 id. 12; *Birch v.*Benton, 26 Mo. 153; *Estes v. Estes,*75 Me. 478; *Stanford -v. Beyer,*6 Harr. *&*J. 248; *Wilson v. Mitchell,*3 id. 91; *Payson v. Macómb&r,*3 Allen, 69; *Harris v. Lawrence,*1 Tyler (Vt.), 156; *Wright v. Brit-ton,*1 Morris (Iowa), 286; *Philips v. Bose,*8 Johns. 392; *Eilert v. Oshkosh,*14 Wis. 590; *Warren v. Beam,*6 id. 126 ; *Freeman v. Adams,*9 Johns. 116; *Geary v. Bennett,*65 Wis. 554; *Campbell v. Butts,*3 N.' Y. 173; *Frasier v. McClosky,*60 id. 338.

*500Lyoh, 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 *501to 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.