Bailey v. Bailey

• Decision Date: 20 May 1895
• Citation: 94 Iowa 598,63 N.W. 341
• Parties: BAILEY v. BAILEY.
• Court: Iowa Supreme Court

94 Iowa 598

63 N.W. 341

BAILEY

v.BAILEY.

Supreme Court of Iowa.

May 20, 1895.

Appeal from district court, Cherokee county; A. Van Wagenan, Judge.

Action at law to recover for work and labor, for slanderous utterances used by defendant of and concerning the plaintiff, and for alienating the affections of her husband. Trial to a jury. Verdict and judgment for plaintiff for the alleged slander and alienation of her husband's affections. Defendant appeals. Reversed.G. T. Foster and E. C. Herrick, for appellant.

A. C. Hobart and J. A. Metcalfe, for appellee.

DEEMER, J.

Plaintiff herein brought suit against the defendant, who is her father-in-law, upon six causes of action, one of which was for work and labor performed, and the other five for slander. Afterwards she amended her petition by adding another count for alienating her husband's affections. The defense was a general denial, and a plea of the statute of limitations to the count for alienation of affections. The case was tried to a jury, resulting in a verdict for plaintiff for $2,000,--$800 for slander, and $1,200 for alienating her husband's affections. The appeal is from the judgment rendered on the verdict; and errors are assigned on the admission and rejection of testimony, and on the instructions given and refused by the court.

The words charged as having been uttered of and concerning the plaintiff were that she was a “whore” and a “prostitute”; “that she had had a child by her own brother”; was a “street walker,” and was “unchaste”; that she was a “strumpet” and “a woman of bad character,” and that he (defendant) would prove it. The plaintiff was permitted to prove, over defendant's objections, that at other times and to different persons than those stated in the petition defendant said of and concerning plaintiff that her first child was by her brother Andy, and that he could prove it; that plaintiff was nothing but “a damned old bastard” anyway; and that he said to plaintiff's husband, “You had better look out, or there will be another Jenkins around”; that plaintiff's husband should not live with such a damned “bitch” as she was; that she was a “bitch”; that she was a “strumpet”; and he said to a brother of plaintiff that “he wanted to get his sister [meaning plaintiff] up there to harbor her again, and have another bastard young one by him, like she did have.” It is insisted that the court erred in admitting this testimony “because--First, evidence of other slanders, not the same as those counted on, either in words or in substance, is incompetent and immaterial; and, second, because it is not competent to pile up proof of malice in this way where the words counted on themselves prove malice, unless there is some evidence of privilege, and of which there is no claim by the appellant.” The testimony was received by the court simply as tending to show malice; and in the instruction given to the jury he carefully limited the operation of the testimony to the question of actual malice. It has been held time and again by this court that, for the purpose of showing malice, repetitions of the slander, both before and after the speaking of the words complained of, may be proved. Beardsley v. Bridgman, 17 Iowa, 290;Schrimper v. Heilman, 24 Iowa, 505;Prime v. Eastwood, 45 Iowa, 640;Hinkle v. Davenport, 38 Iowa, 355;Halley v. Gregg, 74 Iowa, 563, 38 N. W. 416;Jean v. Hennessy, 69 Iowa, 373, 28 N. W. 645;Hanners v. McClelland, 74 Iowa, 318, 37 N. W. 389. See, also, Gribble v. Pioneer Press Co. (Minn.) 25 N. W. 710; Townsh. Sland. & L. §§ 392-396. The better opinion seems to be that the repetitions must be of the same words as those counted on or of words of like import. See authorities last above cited. Repetitions of the slander or of words of similar import are admissible, although the words charged as having been uttered are actionable per se. There is apparently an incongruity in the rule, but it is supported by the overwhelming weight of authority. See Hinkle v. Davenport, supra, and authorities therein cited.

The only question we have, then, with reference to the testimony admitted by the court, is whether the words used were of like import as those charged in the petition. We think they were all similar, except it be the word “bastard,” said to be used concerning the plaintiff. Turning to the record, however, we find that the witness who gave testimony with reference to the use of this word stated its use by defendant in answer to a proper question, and in connection with other statements which were clearly admissible, and no motion was made to strike it from the answer. Moreover, the language was used by defendant in the presence of his son, the plaintiff's husband, and it was admissible as bearing upon the question of alienating his affections. The word “bitch” is synonymous with “wench” or “hussy,” and often implies lewdness. Standard Dict. p. 200. We see no error in the admission of this testimony.

2. The plaintiff, when upon the witness stand, was asked upon cross-examination if she did not have her husband arrested before their marriage for the crime of seduction; if she did not ask him to marry her, and he refused to do so; if he did not tell her he had no affection for her, and never did have; if she did not have him arrested, and compel him to marry her; and if her husband did not tell her when he married her that he would not live with her any longer than he was absolutely obliged to. Objections to these questions were sustained, on the ground that they were not proper cross-examination. It is conceded by counsel that nothing was said by the witness in her examination in chief which would justify this line of interrogation. But, to establish the alleged error of the lower court, it is contended that, as plaintiff came upon the witness stand claiming the benefit of a presumption that there was an affection existing between herself and her husband, she could be cross-examined with reference thereto. In support of this contention, reliance is placed upon the rule adopted in seduction cases, wherein it is allowable to cross-examine the prosecutrix with reference to particular acts of unchastity, although nothing had been said about her character in the examination in chief. See State v. Sutherland, 30 Iowa, 570. We do not see any parallel between the two cases.

The ultimate question in cases of this kind is, did the defendant alienate from plaintiff her husband's affections? The state of her mind and the ardor of her love are not material except upon the question of damages. The law indulges a presumption, no doubt, that the husband had affection for his wife, and it rests with the defense to prove that he did not have. But, by offering herself as a witness, she did not by that mere act affirm that he had affection for her. This presumption would arise whether she became a witness or not. We think the cross interrogatories propounded were objectionable, and that the court correctly sustained objections thereto. If it be conceded, however, that the ruling was erroneous, it was error without prejudice, for the defendant was thereafter permitted to show that the husband was arrested upon information filed by plaintiff, accusing him of the crime of seduction; that he married her to condone the offense; and that he had no affection for plaintiff at the time of their marriage.

3. Counsel offered to show by defendant and his wife that he (defendant) offered to give plaintiff's husband 80 acres of land, upon which there was a small mortgage, provided he would go and live upon it; that he offered to give him a team, and to furnish him implements and all necessary seed with which to sow and plant the land, and would take care of him the first year, and would build a house upon the land,...