Cain v. Osler

• Decision Date: 18 December 1914
• Docket Number: 29717
• Citation: 150 N.W. 17,168 Iowa 59
• Parties: ALEX CAIN, Appellee, v. JOHN K. OSLER, Appellant
• Court: Iowa Supreme Court

150 N.W. 17

168 Iowa 59

ALEX CAIN, Appellee, v. JOHN K. OSLER, Appellant

No. 29717

Supreme Court of Iowa, Des Moines

December 18, 1914

Appeal from Pottawattamie District Court at Avoca.--HON. E. B WOODRUFF, Judge.

ACTION at law for an alleged slander. Verdict and judgment for plaintiff in the sum of $ 2,500.00, and defendant appeals.

Reversed.

Preston & Dillinger, and John P. Organ, for appellant.

Genung & Genung, for appellee.

DEEMER J. LADD, C. J., GAYNOR and WITHROW, JJ., concurring.

OPINION

DEEMER, J.

Plaintiff alleges that the defendant used the following false, defamatory and slanderous words of and concerning him (plaintiff) in the presence of Mrs. Martin Larsen and Mine Schenbaugh, at the home of Martin Larsen in Pottawattamie County, Iowa some time in the month of September, 1911: "He (plaintiff) is a damn thief; he has stolen my steer; he is a damn, drunken thief." This is denied by defendant and, without averring whether tendered in mitigation or as a justification, he pleaded the following:

"That at and for some time prior to the alleged slander, he, defendant, was the owner of the red steer mentioned in the petition, and that plaintiff was, and had been for some time, prior thereto, a tenant upon the lands of defendant, and was familiar with the cattle owned by the latter and kept upon his farm.

"That some time prior to the alleged slander the said steer disappeared from or was taken from the farm of defendant without his knowledge or consent, and a short time subsequent thereto the said steer was in the possession of the plaintiff, and by him was sold to one Ade Osler and by the latter sold to one Mart Larsen without defendant's knowledge or consent.

"That shortly thereafter defendant discovered said steer in possession of said Larsen and claimed the same as his own. That Larsen at the time informed the defendant of his purchase of the steer from the said Cain, and the defendant informed Larsen that Cain had no ownership in the steer, but that it was the property of the defendant and that he thereupon made claim to the same.

"That the steer in question was in fact taken by said Cain and appropriated to his own use and sold by him as aforesaid. And the statements made by the defendant concerning his ownership of the same, and that the plaintiff had no ownership of the same, or right to dispose of the steer, were in fact true. And defendant at the time believed the same to be true, and they were made in good faith and without any malice upon the part of the defendant toward plaintiff."

In addition thereto, he pleaded, in an amendment to his answer:

"That the statement he made to Mrs. Larsen was that the red steer was his property and that Alex Cain had no right to sell it and that if he, Cain, did sell the steer, it was the same as stealing. That such statement was made to Mrs. Larsen under the conditions and in the manner following, to wit: Defendant at the time had gone to the Larsen place to look at the steer to see if the same was his property, and found that it was branded with his brand as it had been put on a bunch of cattle on or about December 6, 1910. He then told Mrs. Larsen that the steer was his and had his brand on it. In reply Mrs. Larsen said that they, meaning herself and husband, didn't steal the steer, that they bought the steer of Ade Osler who had bought it of Alex Cain. Defendant thereupon said that he did not accuse them of stealing the steer, that he was satisfied that so far as they were concerned they had come by it in a legitimate way, but that if Alex Cain had sold the steer it was the same as stealing, that he, Cain, had no right or authority to sell it. And such statements were in fact true and the defendant believed them to be true, and he made the same in good faith and without malice upon his part toward the plaintiff.

"Defendant for further answer, and by way of justification of the charge of slander made in this action, alleges:

"That at the time stated in the petition when it is claimed that defendant slandered the plaintiff, he, defendant, said to and in the presence of Mrs. Mart Larsen, and of and concerning the plaintiff, that 'if Alex Cain had sold the steer it was the same as stealing.' That at that time he was speaking of the red steer mentioned in the petition; that said steer had prior to that time been sold by Alex Cain, the plaintiff, to one Ade Osler, and the latter had sold the same to Mart Larsen, and defendant had been so informed before such statement was made.

"That such statement was the only one of that kind or character that defendant made to Mrs. Mart Larsen or in her hearing, or in the hearing of any other person named in plaintiff's amendment to his petition. And such statement was in fact true at the time he made it, and if a true or fair construction of the same is that he charges plaintiff with the theft of said steer then defendant alleges such charge to be true."

Upon plaintiff's motion, the matters pleaded in this amendment were stricken, and of this, complaint is made.

The testimony offered by plaintiff tended to show that defendant said to Mrs. Larsen:

"He said it was a stolen calf; that Alex stole it; he didn't say when he stole it or where he stole it. He said Alex Cain stole the steer; it was his and he was going to drive it home. He asked me if Mr. Larsen got the steer of A. F. Osler and I told him he did, and he said A. F. Osler got it of Alex Cain, and he said that Alex Cain stole that steer of him and he was going to drive it away."

Another witness testified that defendant said:

"Jim Osler said Alex Cain stole the calf that Mr. Larsen had, and that he was going to have the calf if it cost him a $ 1,000."

Defendant had another and entirely different version of the matter and also introduced testimony tending to show that Cain had possession of the steer in question, and sold it to A. F. Osler, who in turn sold it to Martin Larsen, from whom he (defendant) thereafter replevied it as his property. The replevin case was tried before a justice, the jury being unable to agree, and before another trial could be had, the steer died; but in the meantime, defendant, recognizing that Larsen had paid for the steer in good faith, refunded him the money he had paid.

A calf skin was presented at the trial which it is claimed was the hide taken from the dead animal, for the purpose of proving that the animal belonged to the defendant, the identification being a brand upon the hide.

On the issues joined and the testimony adduced, the case went to a jury with the result hitherto mentioned.

I. Complaint is made of the ruling striking the amendment to the answer. The ruling on the motion attacking the third division was correct. The plea did not amount to a justification, for it was not an admission of the speaking of the words charged in the petition, and the averment as to the truth was not as broad as the charge and of the very charge. In other words, instead of admitting the speaking of the words charged and pleading their truth, it alleged the speaking of other words, and averred the truth of those words. This tendered a false issue. Snyder v. Tribune Co., 161 Iowa 671, 143 N.W. 519; Prewitt v. Wilson, 128 Iowa 198, 103 N.W. 365; McClintock v. Crick, 4 Iowa 453; Halley v. Gregg, 82 Iowa 622, 48 N.W. 974; Mulvaney v. Burroughs, 152 Iowa 439, 132 N.W. 873.

It is not important, in view of the court's ruling, that this division of the answer was attacked by motion instead of demurrer; the court was justified in ruling upon the motion as if it were a demurrer, and the name of the pleading attacking this division of the answer was unimportant.

We do not understand just what defendant intended to plead in the other division of his amended answer. Surely it is not sufficient as a plea of justification, for the reasons just stated regarding the ruling on the other division of the answer. If not in justification, then it must have been intended as a plea in mitigation; for otherwise it would amount to nothing more than a pleading of evidence in support of the denial of the charge made by plaintiff. Do the facts pleaded constitute mitigating circumstances, upon which defendant may rely? In general, mitigating facts are such as impeach the character of plaintiff or tend to negative malice on the part of the defendant. Marker v. Dunn, 68 Iowa 720, 28 N.W. 38.

The matter stricken out in no manner affected plaintiff's character. If, then, it amounted to anything, it was as a plea of an honest belief in the truth of the charge, or of circumstances which indicated defendant's good faith in making the charge, or that he was without malice in so doing. Prewitt v. Wilson, supra; Morse v. Printing Co., 124 Iowa 707, 100 N.W. 867.

A plea in mitigation must, in its nature, be a confession and avoidance and not a pleading of some other matter and a justification thereof. Looking now to the pleading attacked, it will be observed that it does not admit the use of the slanderous words charged, nor does it allege that they were true, or that defendant believed them to be true. On the contrary, he alleges that he did not charge anyone with stealing the steer, but that if certain things were done it was the equivalent of that for the reason that plaintiff had no authority to sell the steer. In the original answer the defendant pleaded the truth of all charges made by him, not only as a complete defense, but also that he believed the same to be true and that the statements were made by him in good faith and without any malice, which would be a plea in mitigation. The amendment stricken added nothing material to this division as originally pleaded, and there was no error in striking it.

II. The court in several instructions said in...