K v. H

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 actionable, 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 principle 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.