Bond v. Lotz

Decision Date24 June 1932
Docket NumberNo. 41328.,41328.
Citation243 N.W. 586,214 Iowa 683
PartiesBOND v. LOTZ.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Madison County; J. H. Applegate, Judge.

Action for slander. Trial to the court and a jury. Verdict and judgment thereon in favor of the plaintiff in the amount of $400 and costs. The defendant appeals.

Reversed.Percival & Wilkinson, of Winterset, for appellant.

C. E. Hamilton, of Winterset, for appellee.

WAGNER, C. J.

The errors urged by the appellant relate to instructions given by the court to the jury, and to the rulings of the court on the introduction of testimony.

Plaintiff states her cause of action in two separate counts of her petition. The charge in the first count is that on or about February 27, 1930, the defendant, in the presence and hearing of certain persons therein named, “maliciously” spoke concerning plaintiff certain false and defamatory words as follows: “That this plaintiff had received and harbored 55 white chickens which had been stolen from the defendant in October, 1929. That they had been stolen by another person and taken to the farm which the plaintiff was occupying and that the plaintiff had harbored them.”

The charge in the second count of her petition is that during the month of February, 1930, and on other occasions, the defendant, in the presence and hearing of one Erby Grover and other members of his family, “maliciously” spoke concerning the plaintiff certain false and defamatory words as follows: “That in October of 1929, the plaintiff received and harbored 55 white chickens which had been stolen from the defendant. That this plaintiff and one Stephen Bond had also stolen five hundred bushels of corn from the defendant.”

The plaintiff alleges in each count of her petition “That she has been damaged in the sum of $2,500.00 in actual damages.” She prays for the sum of $5,000 “actual damages.”

[1] It will be noted that the plaintiff does not ask for punitive or exemplary damages, but asks only actual damages. The appellant complains because the court instructed the jury upon the subject of malice; it being her contention that malice is an element to be considered only as affecting punitive or exemplary damages, and that no such damages are asked. The court in his instructions specifically told the jury that “no exemplary damages can be considered or allowedby the jury in this case under any condition or circumstances.” It will thus be noted that the plaintiff did not ask for exemplary damages, and that the court specifically instructed that there could be no allowance by the jury in the way of exemplary damages as against the defendant. The court was particularly careful to define in the instructions what was meant by his use of the term “malice.” He told the jury that “malice in a legal sense, (as used in the instructions) means a wrongful act done intentionally without just cause or excuse.” There is no complaint by the appellant as to the definition given. As applied to a case of slander where actual damages only are asked, the definition of malice given by the court is correct and in accordance with the weight of authority. See Ott v. Murphy, 160 Iowa, 730, 141 N. W. 463; 36 C. J. 1214 et seq. In view of the fact that plaintiff is asking only actual damages, and in view of the correct definition given by the court of what is meant by malice, that is, legal malice or malice in law as distinguished from actual malice, or malice in fact, that is, malice importing hatred or ill will and signifying a wrongful motive or intent, the court did not err in instructing the jury upon the subject of malice. There is no merit in the contention made by the appellant at this point.

The court in one of the instructions told the jury: “Some testimony was submitted upon the trial of this case tending to show that the defendant on more than one occasion repeated some of the charges alleged to have been spoken and which are declared upon by the plaintiff in the separate counts of her petition. If you find that the defendant did in fact make such charges at different times with reference to the alleged slanderous words spoken by her of and concerning the plaintiff, it will be proper for you to take said matters into consideration in determining the nature and extent of the injuries or damages which have been sustained by the plaintiff if such charges were made by the defendant to persons other than those included in the allegations of the separate counts of her petition.”

[2][3][4] As applied to the record in this case, said instruction is erroneous. It must be borne in mind that the plaintiff in the instant case is not asking exemplary damages, but only actual damages, and the court so instructed. In the instant case, the court instructed the jury that the alleged slanderous language used is actionable per se, and it is not claimed by the appellant that the instructions in that respect are incorrect. It is true that in certain cases for damages for slander, although the language be actionable per se, evidence showing a repetition of the slanderous language is admissible for the purpose of showing the quo animo or actual malice or malice in fact. See Hinkle v. Davenport, 38 Iowa, 355;Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341;Ladwig v. Heyer, 136 Iowa, 196, 113 N. W. 767. But actual malice or malice in fact is only material as establishing a right to recover exemplary damages or to defeat a plea, if any, of defendant that the publication of the slanderous language is privileged. See 36 C. J. 1217. There is no plea of privileged communication by the defendant in the instant case, and, as hereinbefore stated, the plaintiff is not asking exemplary damages. In a case involving exemplary damages, the defendant on a proper plea can show matters in mitigation, but mitigation can only affect the question of exemplary damages. See Cain v. Osler, 168 Iowa, 59, 150 N. W. 17, Ann. Cas. 1918C, 1126;Brandt v. Story, 161 Iowa, 451, 143 N. W. 545;Mowry v. Reinking, 203 Iowa, 628, 213 N. W. 274. It is apparent that, since the plaintiff is only asking actual damages, the court was in error in giving the aforesaid instruction. This is true, because “every publication or repetition of the defamatory matter by defendant constitutes a cause of action, which is separate and independent from the cause of action arising out of the original publication.” See 36 C. J. 1229, 1230; Jean v....

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1 cases
  • Bond v. Lotz
    • United States
    • Iowa Supreme Court
    • 24 de junho de 1932

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