Amick v. Montross

• Decision Date: 26 June 1928
• Docket Number: 38507
• Citation: 220 N.W. 51,206 Iowa 51
• Parties: L. B. AMICK, Appellant, v. ANDREW MONTROSS, Appellee
• Court: Iowa Supreme Court

220 N.W. 51

206 Iowa 51

L. B. AMICK, Appellant, v. ANDREW MONTROSS, Appellee

No. 38507

Supreme Court of Iowa, Des Moines

June 26, 1928

Appeal from Iowa District Court.--R. G. POPHAM, Judge.

Action for slander. The opinion states the case.--Affirmed in part reversed in part.

Affirmed in part; reversed in part.

Havner Flick & Powers and Swift & Swift, for appellant.

Wallace & Claypool and C. R. Off, for appellee.

OPINION

WAGNER, J.

The plaintiff in his petition, consisting of five counts, asks damages for slander. He alleges therein that he has pleaded in the alternative Counts 1 and 2, and also Counts 3 and 4, as a matter of conforming to the proof, as it may be offered. At the close of the plaintiff's evidence, he elected, as between Counts 3 and 4, to stand on Count 3, and as between Counts 1 and 2, to stand on Count 2. Upon motion, the court withdrew from the consideration of the jury Count 3; and as to this action by the court, no complaint is made. Upon separate motion, the court also withdrew from the consideration of the jury Count 2; and this action by the trial court is involved in this appeal. The court submitted Count 5 to the jury, and the jury returned a verdict in favor of the plaintiff for $ 1.00.

On February 11, 1926, the defendant, in compliance with the statutes, made an offer to confess judgment in the sum of $ 25, together with all costs accrued to that date, which offer was served according to law upon the plaintiff or his attorneys. The court rendered judgment in favor of the plaintiff and against the defendant for $ 1.00 and all costs up to and including the date of the aforesaid offer, and against the plaintiff for all other costs. The plaintiff appeals.

In Count 2, the plaintiff alleges that he is a physician and surgeon, located in the town of Millersburg, Iowa, and has been so located for about 14 years, practicing his profession; that the defendant maliciously and untruthfully made a slanderous statement of and concerning the plaintiff to Dr. L. A. Miller, in the presence of Dr. A. C. Schoenthaler, both of North English, Iowa, said statement having been made on or about the month of June, 1925, which statement is as follows:

"I heard Doc. Amick was drunk that night, and wasn't able to go,--was the reason you were called."

Plaintiff further alleges in said count that this statement was made in connection with the birth of George Goodman's baby, which was born in the month of June, 1925, near Millersburg, Iowa, and that said statement was made for the purpose of injuring the business and reputation of the plaintiff; and that, by reason of the making of said statement, plaintiff's business has been injured, and the plaintiff has suffered damages by reason of the making of said statement on the part of the defendant.

In Count 5 of the petition, plaintiff makes the same allegation as to his profession and period of practice, and alleges that, in the month of March, 1925, the wife of the defendant was sick in the town of Millersburg, and the plaintiff, with other doctors, was called to attend her in such sickness; that she died on or about the month of March; and that, after her death, on or about the month of June or July, 1925, the defendant willfully, maliciously, and untruthfully stated to Dr. A. C. Schoenthaler, of North English, Iowa, of and concerning this plaintiff:

"If it had not been for Doc. Amick, the son of a bitch, my wife would be living to-day,"--the defendant meaning and intending thereby to charge this plaintiff with responsibility for the death of the defendant's wife.

The plaintiff further alleged in said Count 5 that said statement was made for the purpose of injuring the reputation and business of the plaintiff; and that, by reason of the making of said statement, the business of plaintiff has been injured, and the plaintiff has suffered damages by reason of the making of said statement. The plaintiff asks judgment on each count in the sum of $ 10,000. There is no proof of special damages.

There is evidence of the making of the alleged slanderous statement contained in Count 5. The defendant, as a witness, denied any such utterance.

There is evidence of the making of the alleged slanderous statement contained in Count 2. The defendant's motion for withdrawal of said count from the consideration of the jury is based upon the grounds that the statement of the defendant is not slanderous per se, and that, upon the entire record, there is nothing as to said count to be submitted to the jury.

It will be observed that the statement is as to what the defendant has heard. By the great weight of authority, a person is held liable for the publication of slanderous words in regard to another, even though he is but repeating what he has heard. 17 Ruling Case Law 319; Terwilliger v. Wands, 17 N.Y. 54 (72 Am. Dec. 420); Brewer v. Chase, 121 Mich. 526 (80 N.W. 575); Kenney v. McLaughlin, 5 Gray (Mass.) 3; Haines v. Campbell, 74 Md. 158 (28 Am. St. 240, 21 A. 702); Prime v. Eastwood, 45 Iowa 640; Mills v. Flynn, 157 Iowa 477, 137 N.W. 1082. Since there was proof of the alleged slanderous language contained in Count 2, the sole question for our consideration at this point is as to whether or not said language is actionable per se.

It is the claim of the appellant that, by Count 2, and the evidence in support thereof, the appellee charged the appellant with drunkenness, which he contends is a crime. Conceding, arguendo, that said count charges the appellant with the commission of a crime,--is the charge of drunkenness slanderous per se? There is a wide divergence of opinion and lack of uniformity in the holdings of the courts upon the question as to when the words charging a criminal offense are slanderous per se. While it has been held by some courts that the form of criminal procedure under which the offense is punished is immaterial, and that it is not essential that the offense be indictable, yet the general rule is that the offense charged must be indictable. 36 Corpus Juris 1195; 17 Ruling Case Law 266. See Estes v. Carter, 10 Iowa 400.

It is stated in 36 Corpus Juris 1193 that Brooker v. Coffin, 5 Johns. (N.Y.) 188 (4 Am. Dec. 337), is the leading case in this country, and that the rule therein laid down is known as the American rule. Said rule, as taken from the case, is:

"In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable * * *."

In an early case, Burton v. Burton, 3 Greene 316, this court declared:

"The words charged to have been spoken by the defendant of and concerning the plaintiff impute to him a crime under this statute, which, if true, is punishable by imprisonment, on indictment and conviction. Much uncertainty has existed in the law as to when words in themselves are actionable. Various and conflicting decisions are to be found on this subject. But we believe the true rule by which to test whether defamatory words are actionable per se is to be found in the case of Brooker v. Coffin, 5 Johns. 188. In this case it is held that, if the charge, being true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to infamous punishment, then the words will be in themselves actionable."

The courts are at variance as to what crimes involve moral turpitude, and also as to what constitutes infamous punishment. We quote from Earley v. Winn, 129 Wis. 291 (109 N.W. 633),--a leading case in this country on slander,--the following:

"What crimes involve moral turpitude has been the subject of vast contention, extending from the view that moral turpitude inheres in every willful breach of a criminal statute to the position that only those crimes that present such vileness and depravity as arouses the abhorrence of all mankind are intended. Again, the decalogue, or some other scriptural inhibition, has been thought sufficient by some courts to conclusively ascribe moral turpitude to an act. * * * It is probably true that moral turpitude depends on the conception of the community, which is reflected in the utterances of its judges."

See, upon this subject, 36 Corpus Juris 1194.

"'Infamous punishment' is generally used as synonymous with 'corporal punishment.' In some jurisdictions, imprisonment in the penitentiary, as opposed to a common jail, is essential. In other jurisdictions, a crime punishable by imprisonment in the county jail comes within the rule, and a charge thereof is actionable per se." 36 Corpus Juris 1195.

Again we quote from Earley v. Winn, 129 Wis. 291 (109 N.W. 633):

"Respondent's counsel contend that this expression [infamous punishment] had a definite meaning at common law, which necessitated some element in addition to mere imprisonment, such as castigation, branding, the pillory, and the like, and that we must assume such limitation for it in this rule. Such significance seems, a priori, improbable, when we remember that hardly any, if indeed any, of those elements characterized the punishment for any crime at the time of declaring that rule in Wisconsin. While there is pretty general holding in other states that mere fine is not infamous punishment, and much conflict as to whether mere imprisonment in county jails should be so considered, we do not deem essential review or analysis of those cases, for we consider the latter question settled in this state by Geary v. Bennett, 53 Wis. 444, 446, 10 N.W. 602, where, with full deliberation, this court held that fine or imprisonment in the county jail constituted 'infamous punishment,' within the meaning of the rule above stated."

In Birch v. Benton, 26 Mo. 153, it was held...