#### K- vs. H-.

*Complaint in Blander, words spoken in German*— Amendment *of complaint at or after trial*— Reversal *of judgment, where came of action is not alleged, hit proven.*

1. A complaint for slander, where the words are alleged to have been spoken in German, should also aver that they were understood by those who heard them.

2. In slander for words spoken in German, the complaint set forth the same in German with an English translation. *Held,*that even if the German words were actionable, yet if those used in the translation are not, the complaint does not show a cause of action.

3. The word “ bitch,” when applied to a woman, though a word of reproach, does not charge the crime of adultery or prostitution, and is not actionable.

4. Words charging a married woman with seating herself upon the lap of a man other than her husband, and desiring him to have carnal interconrse with her, and insisting upon it, do not charge her with the *act*of adultery', and are not actionableyier *se. '*,

5. The provisions of the statute (sees. 37 and 40, ch. 125, R. S.) in respect to the amendment of a complaint at or after the trial, in case of a variance, do not apply to a case where the complaint does not state a cause of action. Dixon, C. J., dissents. 4

6. A judgment for plaintiff should be reversed where the complaint does not state a cause of action, although the objection was not taken in the court below, and a cause of action was shown by the evidence, admitted witho ut exception. Dixon, C. J., dissents.

APPEAL from the Circuit Court for *Dodge*County.

This was an action for slander, brought by *V.*K,and his wife, *8. K.*The complaint, after stating the marriage of the plaintiffs, the good character and reputation of the plaintiff *8. K.,*&c., alleges “that the defendant, well knowing the premises,-but contriving and maliciously intending” &c. &c. ¡diere follow specifications of time and place, and names of the persons in whose presence the words are alleged to have been spoken], *“*did speak, publish and declare in the German language, of and concerning the said plaintiff *8.*Kthe false, iniquitous,' scandalous and malicious words, to wit: [Here follow the words in German, with an English translation and inuendoes, the essential parts of which are as follows] : *Mrs. K.*(the plaintiff *8. K.*meaning) took a ride with him (defendant meaning) from ’W’aupun to Ms, farm in a buggy. *Mrs. K.*(the plaintiff *8. K.**240meaning) sat in Ms lap, and wanted Mm (defendant meaning) to screw ber (meaning thereby, to bare carnal intercourse witb her). She insisted ujDon it absolutely. He (defendant meaning) could not do it, she stunk so much * * * the redheaded bitch — wMck the said defendant repeated several times; he, the said defendant, meaning thereby that the said plaintiff *& K.,*was guilty of open and gross lewdness and lascivious behavior, and was and is a common prostitute.” The German word translated “ bitch,” is “ Mensch.” The complaint proceeds : “By reason of the speaking, publishing and uttering of which false, scandalous and. malicious words, the said jffaintiff *is. K.*is greatly prejudiced in her good name, fame, credit, reputation and character, and upon hearing of said false and scandalous report so made by defendant, she became depressed in spirits, mortified, and for a time partially deranged, and unable to enjoy the pleasures of social and domestic life as usual. Wherefore the said plaintiffs say that they have sustained damage,” &c. &c.

The answer admits the marriage of the plaintiffs, but denies the speaking of the words charged, so far as they are important here.

On the trial, the complaint was amended so as to allege that the words charged were understood by the persons in whose presence they were spoken. There was^vidence to sustain the allegations of the complaint. There was also evidence that “ the word £ *Mensch ’*signifies, in the German language, a woman of very low character, and may mean a whore or not, depending on the connection in which the word is used.” No actual damages were shown. The court instructed the jury that if they found that the words charged were spoken as alleged, and that the defendant thereby intended to charge and did charge *Mrs. K.*with being a prostitute or whore, such words are actionable of themselves, and it was not necessary to prove special damage; that no proof of special damage having been made, the plaintiffs could not recover unless the words were *241actionable *per se;*that none of said words were actionable of themselves, unless it might be the word “ *Mensch,”*and whether this were so depended on the sense in which the defendant intended it should be understood; that if they should find from the connection in which the word was used, that the defendant did not intend to charge *Mrs. K.*with being then a prostitute, but only a woman of lewd manners and disgusting habits, then no recovery could be had; that it was not enough to find that he meant she was guilty of such acts as a prostitute might commit, but the jury must find that he meant to charge and did charge that she was a prostitute.

Yerdict for the plaintiffs for $300 ; motions in arrest of judgment, and for a new trial, overruled; and judgment upon the verdict; from which the defendants appealed.

Billinghurst, *Lewis &*Fribert, for appellant,

cited 1 Starlde on Slander, 22, 24, 88, 41; R. S., ch. 119, sec. 20; *Zeigv.*Ort, *8*Chand., 28; *Broolcer v.*Goffin, 5 Johns., 188; *Young v.*Miller, 3 Hill, 21; *Benaway v. Gonyne,*3 Chand., 214; *Montgomery v.*Beeley, 3 Yds., 709 ; *Chase v. WhitlocJc,*3 Hill, 139 ; Saunder-son.PL, Yol. 2, Pt 2, 902.

*Ware &*Byce, for respondents,

cited *Banger v. Goodrich, 17*Wis., 78 ; 1 Starlde on Slander (Phil. Ed.), 44, 45, 57, 59 ; 3 id., 240. The strict rule of proof formerly applied to this action has been abrogated by the code. R. S., ch. 125, sec. 33. This applies to cases of slander. Yan Santvoord’s PL, 829; 3 Phillips on Ev., 236.

Downer, J.

Does the complaint state facts sufficient to constitute a cause of action ? The alleged slanderous words were spoken in Herman, and a translation is given in the complaint. In determining whether the complaint is defective or not, we must be governed by the translation into English. If the plaintiff in his translation has rendered a foreign word of an actionable sense, by an English one whose meaning is not ac*242tionable, tbe complaint is defective, and tbe judgment under tbe former practice would be arrested. Starkie on Slander, vol. 1, p. 412.

It was urged at tbe argument, tbat because it was proved on tbe trial tbat tbe word in German wbicb was translated into English by tbe word “bitch,” bad two meanings in German, corresponding to tbe English words “bitch” and “prostitute,” and it was left to tbe jury to say in wbicb sense tbe word was used, and they found tbat it was used in tbe sense of prostitute, tbe complaint ought to be considered as good; or if not, tbat it might be now amended. But if tbe rule we have cited from Starkie is correct, tbe complaint must be tested by tbe English translation; and testing it by tbat, it is clear to us tbat tbe word “ bitch ” has not any such meaning as prostitute. It is used as a term of reproach when applied to a woman, but not to charge tbe crime of prostitution. Nor do we think tbe innuendo wbicb is added to all tbe alleged slanderous words can extend tbe sense of those words so as to make them charge tbe crime of adultery or prostitution, as there are no appropriate introductory averments of wbicb tbe innuendo is explanatory, or to wbicb it refers. 1 Starkie on Slander, 422, 431; *Van Vechten v.*Hopkins, *5*Johns., 220. By themselves, without any innuendo, they clearly charge tbe desire on tbe part of *Mrs. K.*to commit tbe crime of adultery, but not tbe act. Tbe alleged slanderous words, then, charged her with no crime, and tbe complaint does not, therefore, state facts sufficient to constitute a cause of action.

Tbe complaint is also defective in not averring tbat tbe words spoken in German were understood by those who beard them. *Wormouth v. Cramer,*3 Wend., 394; *Zeig v.*Ort, 3 Chand., 29. It is obviojis tbat this case is not within tbe provisions of tbe code respecting amendments of tbe complaint in case of variance. Tbat applies only where there is a cause of of action set out in tbe complaint. Here there is none.

If tbe judgment can be affirmed at all, it must be on tbe *243principle of those New York decisions which hold that however defective the complaint may be, if the evidence makes out a good canse of action, and no exception is taken to its introduction because of the insufficiency of the complaint, and the question of its sufficiency is not raised in the - court below in any other way, the defect cannot be taken advantage of on appeal. See *Mosselman v. Caen,*84 Barb., 66; *Pope v. Dinsmore,*8 Abb., 429; 6 Barb., 557; *Hunt v. Bloomer,*13 N. Y., 341. The construction given to the New York code by these ' decisions appears to be, that questions whether of fact or law can only be reviewed or raised in the appellate court where they have first been raised in the court below, and exceptions have there been taken to the ruling of the court. But this has never been our practice. Both before and since the adoption of the code in this state, this court has reversed judgments of circuit courts for defective declarations or complaints, even when the question of their sufficiency had never been raised at the trial, or at all in the courts below. *Johnson v. Johnson,*4 Wis., 135; *Thurber v. Jones,*14 Wis., 16. And this practice is clearly recognized and provided for in secs. 11 and 15, chap. 264, Laws of 1860.

*By the Court.*— -The judgment of the circuit court must be reversed, with costs, and the circuit court is directed to dismiss the action.

Dixoít, O. J., dissents.

A motion for a rehearing was denied, and the following opinion filed.

Downer, J.

In the argument of the motion for a rehearing, our attention is called to the fact that leave was given on motion in the circuit court to amend the complaint, so as to aver that the words spoken in Grerman were understood by those who heard them. The record shows this, and so much of the former opinion as is based on the want of such averment was *244written, of course, under a mistake of facts. But the main objection, that the complaint does not set out words charging a crime, remains.

"We are referred to the case of *Lounsbury v. Purdy,*18 N. Y., 520, where it was held that a complaint which omits facts essential to a cause of action, if those facts were proved at the trial *after the judge refused to dismiss the complaint,*may he amended under that provision of their code which is the same as sec. 87, ch. 125 of our revised statutes; and that although the complaint was not in fact amended, the defect could not he taken advantage of on appeal.

If that decision is correct, then it would follow that if the cause had been taken without a case or bill of exceptions to the court, of last resort by appeal or writ of error,- the judgment must have been affirmed, although the complaint set out no cause of action whatever, and there was nothing to show what testimony was given on the trial. Eor the presumption is in favor of the validity of the judgment, and that presumption could not be rebutted or controlled by showing a bad or defective complaint; because if there was evidence that made out a good cause of action, it would cure the complaint; and that being so, such evidence would be presumed; otherwise a judgment might be reversed without a case or bill of exceptions which could not be with one. If the doctrine in the case of *Lounsbury v. Purdy*is to prevail, I do not see what need there is, after judgment, of any complaint; for if a complaint which shows no cause of action whatever may be sustained because the evidence is sufficient, why not decide that after judgment it is a matter of indifference whether there are any pleadings or not, and that this court should be governed entirely by the evidence and exceptions as to its competency in determining whether the judgment should be reversed. or affirmed ? But it is said the statute authorizes *the*pleadings to be conformed to the facts proved when the claim or defense is not thereby *substantially*changed. Is not a sub*245stantial change of tbe complaint also a substantial change of the claim ? Is not the change of a claim from an invalid, to a valid one — from a claim which the plaintiff has no legal right to enforce, to one which he has a legal right to enforce— a material, a *substantial*change? It appears to ns that it is. We are not inclined to follow the New York decision, even as to the construction of sec. 37, above cited. We have, however, other statutory provisions than that. Section 15, ck. 264, Laws of 1860, provides that “it shall only be necessary to cause a bill of exceptions to be settled and made a part of the record in cases where the party desiring to appeal, or sue out a writ of error, may desire to have reviewed in the supreme court any alleged error which, without such bill of exceptions, would not appear on the face of the record.” This clearly shows that substantial defects in the pleadings may be taken advantage of on appeal, without a bill of exceptions. We think the former rule respecting pleadings defective in substance has not been repealed, and should not be departed horn.

The motion for a rehearing must be overruled.

Dixon, C. J.

No decision is an authority upon a point which is passed unobserved. The point that there was no exception in *Thurber v.*Jones, 14 Wis., 16, was not made by counsel, and I know was not observed or considered by the court I refer to the case of *Tomlinson v.*Wallace, 16 Wis., 224, where the point *was*made in this court, and decided the other way. See also *Mead v.*Bagnall, 15 Wis., 162, where the court took the same view of the law as in *Tomlinson v. Wallace.*Mr. Justice Paife said it was difficult to see how the appellant could raise the objection in this court for the first time on appeal, without even having appeared in the court below. Anri see likewise *Bogert v.*Phelps, 14 Wis., 88, in which it was expressly decided that this court will review no questions in a cause which were not fairly presented for. the consideration of the court before which the action was originally tried.

*246Tbe courts of New York bave beld with singular unanimity of opinion, and I tbink rightly, tbat under tbe code, after trial upon tbe merits and Arerdict or judgment, objection cannot be taken to tbe sufficiency of tbe complaint upon appeal, no objection and excejffion baying been taken at tbe trial or in tbe court below. Tbe reason is obvious, and well stated in some of tbe decisions. A party cannot lie by, withhold bis objec-ions at tbe trial, allow tbe plaintiff to come in with bis proof, and take bis chances of defeating him on tbe merits; and then, if be is beaten, come here to object for tbe first time tbat tbe complaint is defective. If the objection bad been taken at tbe trial, it might bave been obviated by amendment. Such a course of proceeding is contrary to tbe whole spirit of tbe code, which discourages dishonesty and unfairness among practitioners and parties. Some of tbe authorities are cited in my opinion in *Bobbins v. Deverill, ante,*p. 146, and also in tbe opinion ot tbe majority m this case. Eor convenience I rejseat them here : *Mosselman v. Caen,*34 Barb., 66; *S. C.,*21 How. Pr. R., 248; *Pope v. Dinsmore,*8 Abb., 429; *Carley v. Wilkins,*6 Barb., 557; *Hunt v. Bloomer,*6 N. Y., 341; *Johnson v. Whitlock,*id., 345; *Magie v. Baker,*14 N. Y., 435; *Weed v. N. Y. & Harlem R. R. Co.,*29 N. Y., 616; *Morton v. Pinckney,*8 Bosw., 135; *Bowdoin v. Colman,*6 Duer, 186; *Halsey v. Black,*Ct. of Appeals, 26 How. Pr. R., 97, 102; *Sharp v. The Mayor &c..,*25 id., 392-3; *Lounsbury v. Purdy,*18 N. Y., 520-21. The three last cases relate more especially to tbe power of amendment.

How my brethren can say tbat there is no power of amendment in this case, is certainly beyond my comprehension. Tbe statute, section 37, chap. 125, R. S., confers it in so many words *—“ by inserting other allegations material to the case.”*It may be done either before or after judgment; and I cannot but agree with the Court of Appeals in *Lounsbury v. Purdy,*tbat tbe power exists as to any *material*allegation which does not change substantially the claim of the plaintiff.

Again, it seems to me that tbe decision is in payable viola-*247tiou of section 40 of tbe same statute. Tbat section provides tbat tbe court shall, in every stage of tbe action, disregard *any*error or defect in tbe pleadings or proceedings wbicb shall not *affect the substantial rights*of tbe adverse party; and no judgment shall be reversed or affected by reason of such error or defect "What substantial right of tbe defendant has been affected by reason of tbe omission or defect in tbe complaint, tbat be should have the judgment reversed after a full and fair trial upon the merits, at which be took no exception — is more than I can see. As to section 15, chap. 264, Laws of 1860, it is clear to me tbat it has no application to this question. It applies to appeals from judgments and orders on demurrer, and other orders, where a bill of exceptions is unnecessary. Such judgments and orders may be *reviewed*without a bill of exceptions ; but there can be no *review*in this court of a question wbicb was never made or decided in tbe court below.

For these reasons I cannot assent to tbe decision of tbe majority in this case, but am of opinion tbat tbe judgment of tbe court below should be affirmed.

*By the Court.■*— The motion for a rehearing is denied.