{ "id": 2740322, "name": "Mary Ann Schmisseur v. Louisa Kreilich", "name_abbreviation": "Schmisseur v. Kreilich", "decision_date": "1879-06", "docket_number": "", "first_page": "347", "last_page": "353", "citations": [ { "type": "official", "cite": "92 Ill. 347" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "40 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "32 N. H. 479", "category": "reporters:state", "reporter": "N.H.", "opinion_index": -1 }, { "cite": "12 Conn. 264", "category": "reporters:state", "reporter": "Conn.", "pin_cites": [ { "page": "290" } ], "opinion_index": -1 }, { "cite": "48 Ill. 385", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5225710 ], "opinion_index": -1, "case_paths": [ "/ill/48/0385-01" ] }, { "cite": "1 Denio, 208", "category": "reporters:state", "reporter": "Denio", "case_ids": [ 483860 ], "opinion_index": -1, "case_paths": [ "/denio/1/0208-01" ] }, { "cite": "41 Ill. 147", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "15 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436578, 436595 ], "opinion_index": -1, "case_paths": [ "/ill/15/0228-01", "/ill/15/0228-02" ] }, { "cite": "2 Gilm. 720", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560151 ], "opinion_index": -1, "case_paths": [ "/ill/7/0720-01" ] }, { "cite": "1 Scam. 187", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2482980, 2479991 ], "opinion_index": -1, "case_paths": [ "/ill/2/0187-02", "/ill/2/0187-01" ] }, { "cite": "16 Ill. 38", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2588580 ], "opinion_index": -1, "case_paths": [ "/ill/16/0038-01" ] }, { "cite": "3 Wharton, 138", "category": "reporters:state", "reporter": "Whart.", "case_ids": [ 1833458 ], "opinion_index": -1, "case_paths": [ "/whart/3/0138-01" ] }, { "cite": "3 Wend. (N. Y.) 394", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2144223 ], "opinion_index": -1, "case_paths": [ "/wend/3/0394-01" ] }, { "cite": "12 Ind. 453", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1489034 ], "opinion_index": -1, "case_paths": [ "/ind/12/0453-01" ] }, { "cite": "67 Ill. 485", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820107 ], "opinion_index": 0, "case_paths": [ "/ill/67/0485-01" ] }, { "cite": "23 Ill. 498", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5803093 ], "opinion_index": 0, "case_paths": [ "/ill/23/0498-01" ] }, { "cite": "15 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436578, 436595 ], "opinion_index": 0, "case_paths": [ "/ill/15/0228-01", "/ill/15/0228-02" ] } ], "analysis": { "cardinality": 555, "char_count": 12006, "ocr_confidence": 0.579, "pagerank": { "raw": 7.907921915483547e-07, "percentile": 0.972964253900517 }, "sha256": "ec670ad1f90bc0a981df0e6f0d6ad6582503518827ae4a701682d4834a7c88c2", "simhash": "1:ace72073810344bf", "word_count": 2097 }, "last_updated": "2023-07-14T16:16:34.737984+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mary Ann Schmisseur v. Louisa Kreilich." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nThis appeal brings before us for review the record of a judgment of the St. Clair circuit court, in favor of appellee and against appellant, in an action on the case for slander.\nThe first objection urged against the judgment below is, that the slanderous words are not proved as laid.\nThe words laid were spoken in the French language. The following sets only need be noticed:\n\u201cLa filie, Kreilieh, a fait la putaine avee mon gar con.\u201d Translated, \u201cThe girl, Kreilieh, has acted (made) the whore with my boy.\u201d \u201c Elle a fait la putaine a Belleville, a St.Louis, etau village.\u201d Translated, \u201cShe has acted (made) the whore in Belleville, in St. Louis, and in the village.\u201d\nProof of equivalent words is not admissible; but it is not essential that every word alleged shall be proved, and that none be proved except those alleged. Where all the words alleged constitute one entire charge, they must all be proved; but it is not necessary to prove the whole-of a continuous sentence as alleged, provided the meaning of the words proved is not varied by the omission of the others. 3 Phillips on Evidence, (Hill, Cowen & Edwards\u2019 Notes,) 551; Sanford v. Gaddis, 15 Ill. 228; Wilborn v. Odell, 29 id. 456; Thomas v. Fischer, 71 id. 576; Baker and Wife v. Young, 44 id. 42.\nAppellee testified that appellant said of her, \u201c Elle a fait la putaine avec mon garcon.\u201d And the speaking of the same set of words is also proved by the testimony of appellee\u2019s father, Francis Kreilieh. These words are proved, when translated into English, to mean, \u201cShe has acted the whore, made the whore, or acted the whore with my son.\u201d\nAppellee also testified that appellant said of her, \u201c Elle a fait la putaine a 8t. Louis, a Belleville et au village Franeais,\u201d which is proved, when translated into English, to mean, \u201cShe has made or acted the whore in St. Louis, Belleville and French Village.\u201d\nThe gravamen of the charge here, both as laid in the declaration and as proved by the witnesses, is in the words, \u201c Elle a fait la putaine.\u201d \u201c She has' acted or made the whore,\u201d\u2014that is to say, in plain vernacular English, \u201c She has whored.\u201d Whether this was in Belleville, St. Louis, French Village, or elsewhere, or with appellant\u2019s son or some one else, is not of the slightest consequence, since it is impossible that a mere charge of fornication can be aggravated or mitigated by reference to the person with whom or the place at which the act was committed.\nThere is no pretence that the jury were not warranted by the evidence to find that these words were spoken as testified to by appellee,\u2014and, assuming that they were so spoken, at least one set of the actionable words was sufficiently proved.\nThe words spoken in German imputed the same charge\u2014 that of fornication\u2014and although not laid in the declaration, proof of them was admissible for the purpose of showing malice. Townshend on Slander, (2d Ed.) 604, \u00a7 392; Am. Leading Cases, (5th Ed.,) Notes to Gilman v. Lowell, p. 245, *197. And the same is true of the other slanderous words spoken in the French language, of which there was proof, but no allegation in the declaration.\nThe next objection urged against the judgment is, that the words alleged and proved are not actionable. The statute provides that: \u201c If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.\u201d Chap. 126, \u00a7 1, Rev. Stat. 1874, p. 992.\nIt is not required, nor is it allowable, that Ave shall put a strained construction on words to relieve the slanderer from a just responsibility. The words are to be construed according to their common acceptation, and, according to common acceptation, to say of a woman that she has \u201cacted the whore,\u201d is equivalent to charging her with the conduct that characterizes a \u201c whore\u201d\u2014 that is to say, that she has been guilty of fornication or adultery, accordingly as she was married or single when guilty of that conduct.\nBut, it is again insisted, appellee having averred that the words spoken amounted to a charge of the crime of fornication, was bound to prove it. It is a misapprehension to assume that the innuendo alleged is that the different sets of words, as laid, amount to a charge of the crime of fornication. Following each set of words, except the last, the innuendo is: \u201c Meaning thereby then and there to charge that the plaintiff had been and was guilty of fornication,\u201d\u2014the innuendo following the last only being that the intent was to charge the crime of fornication.\nBut, aside from this, we hold here, as in Elam v. Badger, 23 Ill. 498, the words proved are actionable of themselves without colloquium or innuendo, and the innuendo that the intent was to charge the crime of fornication may be rejected as surplusage.\nThe objections averred against the instructions given on behalf of appellee are untenable.\nThe first and second instructions do not, as counsel assume, instruct the jury that the words spoken impute criminal intercourse. They instruct the jury that the several sets of words charged or a sufficient number of either set which impute criminal intercourse, are actionable. Whether the words charged, or any set of them or a sufficient number of either set which impute criminal intercourse, have been proved, is left to the jury. Surely there can be no question but that the sufficiency of the words, as alleged in the declaration, is a question of law,\u2014and more than this is not here assumed.\nFlor do we conceive the instructions are obnoxious to the other objections urged against them. From the speaking of actionable words malice is implied, which will justify the assessment of exemplary damages. Flagg v. Roberts, 67 Ill. 485.\nIt is admitted that appellee\u2019s character was good, and that appellant is wealthy. The damages assessed, though large, we can not say \u00e1re excessive.\nOn consideration of the entire record we see no cause to disturb the judgment below, and it will therefore be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Mr. G. Van Hoorebeke, for the appellant:", "Mr. H. P. Buxton, for the appellee:" ], "corrections": "", "head_matter": "Mary Ann Schmisseur v. Louisa Kreilich.\n1. Alibqations and proofs in action for slander\u2014whether the words are proven as laid, and of the rule in that regard. In an action for slander proof of equivalent words to those laid in the declaration is not admissible; but it is not essential that every word alleged shall be proved, and that none be proved except those alleged. Where all the words alleged constitute one entire charge they must all be proved; but it is not necessary to prove the whole of a continuous sentence as alleged, provided the meaning of the words proved is not varied by the omission of the others.\n2. In this case the words laid were spoken, if spoken at all, in the French language, as follows: \u201c La filie, Kreilich, a fait la putaine avec mon garcon,\u201d\u2014 translated: \u201c The girl, Kreilich, has acted (made) the whore with my boy.\u201d \u201c Elle a fait la putaine a Belleville, a Si. Louis, et au village,\u201d\u2014translated: \u201cShe has acted (made) the whore in Belleville, in St. Louis, and in the village.\u201d The words proven were: \"Elle a fait la putaine avec mon garcon,\u201d\u2014translated: \u201cShe has acted the whore, made the whore, or acted the whore with my son,\u201d \"Elle a fait la putaine a St. Louis, a Belleville, et au village Francais,\u201d\u2014 translated: \u201c She has made or acted the whore in St. Louis, Belleville and French Village.\u201d At least one set of the words laid was held to be sufficiently proven. The gravamen of the charge was that the girl had acted the whore, and at what place or with whom was of no consequence.\n3. Same\u2014proof of words not laid, as showing malice. Other words imputing the same charge, though not laid in the declaration, were held admissible for the purpose of showing malice.\n4. Same\u2014matters in the innuendo alleged\u2014whether to be proved. Words laid in a declaration were, substantially, that the plaintiff, a young woman, had whored, and the innuendo was that the words laid were spoken with the intent to charge the crime of fornication. It was held, the innuendo was not to be understood as alleging that the words laid amounted to a charge of the crime of fornication, so it was not necessary to prove words having that effect.\n5. Slander.\u2014actionable words. The words spoken of a woman, that she \u201chad acted the whore,\u201d are actionable. Such words are equivalent to charging that she had been guilty of fornication or adultery, as she was single or married, and they are actionable of themselves, without colloquium or innuendo.\n6. Law and pact. Whether words charged to have been spoken, in an action for slander, are actionable, is a question of law for the court; whether the words charged have been proven, is a question of fact for the jury.\n7. Exemplary damages\u2014malice in slander. From the speaking of actionable words malice is implied, which will justify exemplary damages.\n8. Excessive damages\u2014in slander. In an action for slander, in which the words laid and proven charged the plaintiff, a young woman, with having \u201cacted the whore,\u201d it appeared the plaintiff was of gbod character, and the defendant wealthy. It was held $2500 damages were not excessive.\nAppeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.\nThis was an action for slander, on the trial of which the plaintiff recovered a judgment for $2500.\nMr. G. Van Hoorebeke, for the appellant:\nAn averment of words spoken in French is not supported by proof of words spoken in German.. In actions for slander the words spoken should be set out in the original language and translated. Chitty\u2019s Pleading, 405; Kerschbaugher v. Slusser, 12 Ind. 453; Warmouth v. Cramer, 3 Wend. (N. Y.) 394.\nThere was a, material variance between the words laid in the declaration and the words proven. Words laid in the second person will not be supported by proof of words spoken in the third person, nor vice versa. Stannard v. Harper, 5 Manning & Ryland, 295; McConnell v. McCoy, 7 Sergeant & Rawle, 223; Foster v. Small, 3 Wharton, 138-142; Cock v. Weatherby, 5 Smedes & Marshall, 333; Culbertson v. Stanley, 6 Blackford, 67, 68; Wolf v. Rodifer, 1 Harris & Johnson, 409; Williams v. Harrison, 3 Missouri, 412.\nIt is not sufficient to prove the speaking of equivalent words, or different words of the same import. The allegation, \u201cYou swore false,\u201d will not be sustained by proof \u201cYou have sworn false.\u201d Norton v. Gordon, 16 Ill. 38; Sanford v. Gaddis, 15 id. 228; Wilborn v. Odell, 29 id. 456; Wallace v. Dickson, 82 id. 202.\nA count for words spoken affirmatively is not sustained by proof of words spoken interrogatively, nor will words spoken to a person sustain a count for words spoken of a person. Slocum v. Kuykendall, 1 Scam. 187; Patterson et ux. v. Edwards et ux. 2 Gilm. 720; Sanford v. Gaddis, 15 Ill. 228.\nPlaintiff having averred that the words spoken amounted to a charge of the crime of fornication, was bound to prove it to sustain the count. Harbison v. Shock, 41 Ill. 147; Emery v. Miller, 1 Denio, 208; Straus v. Meyer, 48 Ill. 385.\nAn innuendo, though unnecessary, will limit and confine the plaintiff in his proof to show that the slander had the meaning thereby imputed to it. 1 Chitty\u2019s Plead. 408; Townshend on Slander and Libel, 534.\nAnd the plaintiff can not on the trial abandon the innuendo, and rely upon a different sense and reference of the words. Smith v. Carey, 3 Campbell, 461; Mix v. Woodward, 12 Conn. 264, 290; Edgerly v. Swain, 32 N. H. 479.\nExemplary damages should not be awarded except in eases where the evidence shows actual ill will. Townshend on Slander and Libel, 489, and note. See also, 1 Greenleaf Ev. sec. 418.\nMr. H. P. Buxton, for the appellee:\nThe slanderous words, or at least enough of them to impute the charge, were proven. See Crotty v. Morrissey, 40 Ill. 478; Baker v. Young, 44 id. 45; Elam v. Badger, 23 id. 501; Rev. Stat. 1874, 992, \u00a7 1." }, "file_name": "0347-01", "first_page_order": 347, "last_page_order": 353 }