Gottbehuet v. Hubachek , 36 Wis. 515 ( 1875 )

Ryan, C. J.

We cannot think it material whether, at the time of the slander, drunkenness was a crime by law, or whether it had ceased to be so before the trial of this action. We take it to be an elementary rule, that “words are actionable which directly tend to the prejudice of any one in his office, profession, trade or business.” 1 Starkie on Slander, 117. This rule is expressly recognized and asserted in Lansing v. Carpenter, 9 Wis., 540. And surely it tends directly to the prejudice of the chief engineer of a fire department, to accuse him of being drunk at a fire which it was his duty to extinguish; drunk in the discharge of an official duty requiring skill and judgment. Chaddock v. Briggs, 13 Mass., 248. It is of no avail to make light of the respondent’s office. The rule rests on the injury to the officer, not on the dignity of the office. The latter may enter into the measure of damages, but cannot affect the right of recovery.

So holding, we certainly cannot reverse the judgment because the circuit judge held with us, and instructed the jury that the words were actionable. There are cases where circumstances make the question a mixed one of law and fact, and there is some consequent confusion of rule in the books. But it seems very plain that, in actions for slander and 'libel, when, in law, the words per se are actionable, it is the duty of the court so to instruct the jury. Filber v. Dautermann, 28 Wis. 134

By the Court.— The judgment of the court below is affirmed.