Andreas v. Hinson

• Decision Date: 24 October 1912
• Parties: ANDREAS v. HINSON.
• Court: Iowa Supreme Court

157 Iowa 43

137 N.W. 1004

ANDREAS

v.HINSON.

Supreme Court of Iowa.

Oct. 24, 1912.

Appeal from District Court, Des Moines County; W. S. Withrow, Judge.

Action for slander. There was a verdict for the plaintiff for $300 and judgment entered thereon. Defendant appeals. Affirmed.C. H. Mohland and Poor & Poor, all of Burlington, for appellant.

Tracy & Tracy, of Burlington, for appellee.

EVANS, J.

[1][2] The slanderous words charged were, “You are a son of a bitch and a thief.” It is charged that these words were uttered by the defendant to the plaintiff in the presence of other persons. The contention of the defendant is that he uttered such words, not in a slanderous sense, but in a vituperative sense only, and in the heat of anger; that he did not intend to impute any crime to the plaintiff; and that his words were understood by the hearers as not imputing any crime. The trial court instructed the jury that if the words were used only in vituperative sense, and were only so understood by the hearers, that the use of the word “thief” in such sense was not actionable as slanderous. The defendant contends that under such a statement of the law there should have been a directed verdict in his favor. There is much in the record in support of the contention of the defendant. There was an altercation of words between the parties at the home of defendant's son. The plaintiff was a comparative stranger both to defendant and his son. He had come there with Louis Dravis, who was a brother of Mrs. Dick Hinson, the daughter-in-law of the defendant. There appears to have been some estrangement between the Dravis and Hinson families, and Mrs. Dick Hinson had been either dissuaded or prevented from visiting her people. The plaintiff and Louis Dravis had come to invite Mrs. Dick Hinson to see her father, who was then ill. They came in a buggy, and offered to take her there and bring her back. The record indicates that there was some urging on their part, notwithstanding the objections of her husband, Dick Hinson. This conduct was construed by the defendant, Joab Hinson as an attempt to steal his son's wife. This is his explanation of the use of the language charged. The instructions were such that the jury could well have found for the defendant on this contention.

[3] Nevertheless the language used was slanderous per se. The plaintiff was entitled to the presumption that it was used and understood in its ordinary sense. The burden was upon the defendant to show that it was used and understood in a different sense. Some of the persons who were present at the altercation testified to their understanding of the meaning intended by the defendant. Others did not testify. We cannot say that the evidence is conclusive in defendant's favor at this point. His own testimony was such as to weaken the theory of his counsel and to leave the question as one fairly for the jury. Upon the whole record, therefore, we think the defendant was not entitled to a directed verdict. And this is so even though the defendant might have been entitled to a directed verdict at the close of plaintiff's evidence. Even if the court erroneously overruled defendant's motion at that time, it will not now avail the defendant. Inasmuch as defendant proceeded with his evidence, such evidence became a part of the record. If it cured defects in plaintiff's evidence, it saved plaintiff the necessity of curing them himself. In passing upon the sufficiency of the evidence, we must look to the whole record as finally made.

[4] 2. The actionable words were charged to have been uttered on March 24, 1911, on a particular occasion. The plaintiff introduced the testimony of one Stapleton as to a conversation had between him and the defendant a few days after the 24th of March. This witness testified as to certain declarations or admissions of the defendant, as follows: “He said he told Andreas what he thought of him. I believe he said he was a damn thief, or something to that effect.” On cross-examination the following appeared: “Q. What did you understand that he referred to when he said he told him what he...