Cowman v. LaVine, 2--56715

CourtUnited States State Supreme Court of Iowa
Citation234 N.W.2d 114
Decision Date15 October 1975
Docket NumberNo. 2--56715,2--56715
PartiesMax Duane COWMAN, Appellee, v. Russell J. LaVINE, Appellant.

Hopkins, Bump & Huebner and Mike Wilson, Des Moines, for appellant.

Comito, Roehrick & Vincent, Des Moines, for appellee.


REES, Justice.

This is an appeal by defendant Russell J. LaVine from judgment entered against him on a jury verdict in an action for damages for slander. Defendant's post trial motion for a new trial was overruled, and defendant appeals. We reverse and remand for a new trial.

The allegedly slanderous statements which spawned this litigation occurred at an August 28, 1972, meeting of the city council at Des Moines, at which defendant was present in his capacity as city councilman. Plaintiff at that time was assistant chief of the city's auxiliary police department, of which he had been a member since 1968. The statements made by defendant are not disputed. During a discussion at the council meeting concerning the auxiliary police department, defendant made several statements regarding plaintiff, from which we excerpt the following:

'I heard Mr. Chenoweth (city manager Tom Chenoweth) on television and had he taken the trouble to do what I did and get the arrest record of this man (plaintiff Cowman) from the B.C.I. of the State of Iowa and the F.B.I. rap sheet, he would find that the man is convicted of a felony, did some time, was released on parole, was picked up on another felony charge and put back in for violation of parole and has an AWOL and some other things.'

'He does have a felony conviction for forgery. Did some time on it. Later was released on parole. Was picked up and charged with rape, but was put back in for violation of parole and the rape charges never pursued. But he does have a felony and when you go on the radio and newspaper and say that Scott (another councilman) and LaVine are continually wrong and that this man doesn't have a felony--you are wrong.'

Plaintiff commenced the within action in the district court of Polk County by filing his petition on September 13, 1972. In his petition he alleged that on or about the date of the council meeting above referred to, 'The defendant herein did publicly, in an open Des Moines City Council meeting, accuse the plaintiff of having been convicted of a felony. That said plaintiff claims the foregoing statements to be false, malicious, and slanderous.' The petition specifically alleged defendant slandered the plaintiff by stating plaintiff had been convicted of the crime of forgery, that he had a felony record, and that plaintiff had had his parole revoked.

The case had a rather long and complicated pre-trial history. On January 25, 1973, before answer, plaintiff filed a motion for summary judgment and in an affidavit attached asserted he had never been convicted of a felony, claiming the statements defendant made referred to plaintiff's juvenile record, and further asserting that as a matter of law a juvenile cannot be convicted of a felony. The motion for summary judgment also alleged defendant's statements were slanderous per se.

On February 6, 1973, defendant filed answer generally denying the allegations of plaintiff's petition, and affirmatively alleging that at the time of the purported statements defendant was a member of the City Council of the City of Des Moines and that any statements made by him were made in the course of official proceedings relating to a matter in the line of his duty as a public officer and were therefore privileged.

Defendant later filed resistance to plaintiff's motion for summary judgment asserting in an affidavit attached his status as city councilman at the time he made the statements and denying malice in making them. He also attached to the affidavit a copy of plaintiff's 'criminal record' from the files of the State Bureau of Criminal Investigation which showed, in part, the following:

                Arrested or received         Charge                 Disposition
                --------------------  --------------------  ----------------------------
                2-21-57                           Forgery   2-22-57 Rel. to Juv.  Court
                3-12-57                           Forgery   Until 21 yrs. of age
                                                            11-8-57 Paroled
                10-28-58              Violation of parole
                                      (Hold for Juv.  Ct.)            (no entry)
                6-24-60                          AWOL       6-24-60 - Rel. to Mil.  Auth
                10-9-62                         Invest.     10-10-62 Rel
                3-26-63                 Attempt B&E         Held to GJ under $1000 bond
                                                            6-20 3 Ignored by C.J
                3-26-63                   Intox. & Invest.      3-26-63 (1) G. Dism
                                                                (2) Rel. Deputy Sher.
                                                                of Polk County, Iowa
                7-2-64                Poss. burglar tools            (no entry)

Another sheet attached to the defendant's affidavit listed 'attempted rape' as the violation of parole referred to in the above entry of October 28, 1958.

On February 21, 1973, Judge Thomas S. Bown overruled plaintiff's motion for summary judgment, by calendar entry as follows: 'Statements are slanderous per se. Defendant has qualified privilege. Proof of malice is for the jury.'

Approximately four months later, on June 27, 1973, defendant filed his motion to being in the City of Des Moines as a third party defendant with affidavit and a copy of his proposed cross-petition attached. In his motion defendant asserted that if he were held liable to plaintiff, defendant would thereby be entitled to maintain an action against the city by virtue of § 613A.2, The Code, 1971, which provided for the liability of governmental subdivisions for torts of its officers, employees, or agents acting within the scope of their employment or duties. In said affidavit defendant again declared, Inter alia, he was acting in the performance of his duties as a councilman on the date the alleged defamatory statements were made. He also attached a copy of a letter from Attorney Terrence Hopkins, who had apparently been engaged by the city to assist defendant in the case, addressed to City Attorney of Des Moines. In his letter Mr. Hopkins expressed the opinion the city would be required to defendant Mr. LaVine and to pay any judgment rendered against him, basing his conclusion on the provisions of § 613A.8, The Code, 1971, which we cite in pertinent part Infra.

In an order filed the same day, Judge Wade Clarke sustained defendant's motion to bring in the city as a third party defendant, and defendant thereupon filed his cross-petition.

On July 6, 1973, the City of Des Moines entered its appearance and requested a continuance. Judge Harry Perkins on that date ordered a hearing on the application for continuance to be held on July 9 before Judge A. B. Crouch.

On July 9 plaintiff filed a resistance to the city's application for continuance and a motion to set aside the ex parte order entered by Judge Clarke authorizing the filing by defendant of the third party petition against the city. Following hearing Judge Crouch sustained plaintiff's motion, holding that Judge Clarke's ex parte order to bring in the city be set aside and a new hearing on the original motion to bring in third party defendants be held two days later. After the subsequent hearing, Judge Crouch overruled defendant's motion for leave to bring in the city as a third party defendant, stating in his order, '(T)he motion * * * will be denied because of the delay in filing the motion for nine months, as I view it. I think the petition was filed in September, and it (defendant's motion) was not filed until after the trial date was selected.'

Because of Judge Bown's ruling in which he held defendant's statements at the council meeting were qualifiedly privileged, the issue as to whether defendant's statements were motivated by actual malice became significant at trial. The following matters which occurred at trial are pertinent to this appeal.

On plaintiff's motion, trial court excluded from evidence that portion of plaintiff's 'criminal record' which referred to the charge of attempted rape as the basis for violation of his parole from the State Training School for Boys, and similarly excluded the portion of the city council transcript in which defendant referred to the charge of 'rape' against plaintiff. In its order excluding the above referred to matters from evidence, the court concluded the prejudice to plaintiff from the references to attempted rape outweighed the probative value of the excluded matter on the issue of absence or presence of actual malice.

Plaintiff introduced evidence of other statements by defendant which he alleged were republications or further and additional slanderous statements relating to the original defamation and from which the jury might have drawn an inference that defendant acted with actual malice in making his original statement.

During the cross examination of the defendant, the following record was made:

'Q. Right now do you believe that Mr. Cowman is not a convicted felon, you Russ LaVine?'

'A. No, sir.

'Q. You do not believe he is a convicted felon?

'A. I do not believe that he is not a convicted felon, based on this.

'Q. You believe he is still then in your own mind a convicted felon.

'A. Yes, sir.'

The foregoing testimony became material to this appeal because sometime after the jury began its deliberations, the following written question was submitted to the trial judge:

'To Judge Wheeler

'Is Mr. LaVine's testimony in court in this trial that he believes Max Cowman to be a convicted felon a republication per instruction #8.'

Instruction #8 advised the jury they were permitted to draw an inference of malice from evidence of republications of the allegedly slanderous...

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