Fleagle v. Downing, 31837

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GAYNOR, J.
• Citation: 168 N.W. 157,183 Iowa 1300
• Parties: HARVEY FLEAGLE, Appellant, v. PAUL H. DOWNING, Appellee
• Docket Number: 31837
• Decision Date: 27 June 1918

168 N.W. 157

183 Iowa 1300

HARVEY FLEAGLE, Appellant,
v.
PAUL H. DOWNING, Appellee

No. 31837

Supreme Court of Iowa, Des Moines

June 27, 1918

Appeal from Cedar District Court.--MILO P. SMITH and F. O. ELLISON, Judges.

ACTION for libel and slander. Demurrer to petition. Demurrer sustained. Plaintiff filed an amended and substituted petition. Motion to strike amended and substituted petition on the ground that it was simply a repetition of the cause of action alleged in the original petition. Sustained. Amended and substituted petition stricken. Defendant properly preserved exceptions to both rulings, stood upon his pleadings, and appealed.

Reversed.

John C. Higgins and Sharon & Harrison, for appellant.

J. C. France and C. O. Boling, for appellee.

GAYNOR, J. PRESTON, C. J., WEAVER and STEVENS, JJ., concur.

OPINION [168 N.W. 158]

[183 Iowa 1301] GAYNOR, J.

This action is brought to recover damages for an alleged slander and libel. The action was brought in two counts. The first count in the original petition alleged that, in the month of May, 1915, the defendant published and circulated, in writing and verbally, of and concerning the father of the plaintiff, that plaintiff's father was considered very disagreeable, not stable, went to extremes in conversation, and that he died in the poor farm. It is alleged that this blackened and vilified the memory of plaintiff's father, and scandalized and provoked the plaintiff; that these statements were falsely made, and with a malicious intent to injure, scandalize, and provoke the plaintiff. The second count alleged that plaintiff, at the commencement of the Spanish-American War, enlisted as a private; that, while in service, he received injuries from sunstroke; that this affected his nervous system, and indirectly, his mind; that, on account of the injuries so [183 Iowa 1302] received, the United States government paid him a pension of $ 24 a month; that, at the time of the happening of the matters complained of, the plaintiff was receiving a pension from the government on account of such disability; that the defendant, with the malicious intent and purpose of injuring the plaintiff and of depriving him of the pension, verbally and in writing said, published, and circulated that plaintiff was not injured in the service of the United States, that his mental condition was the same as it was before he entered the service, that his mind was no different than it was thirty years ago, that he was not considered unbalanced, but had a disagreeable disposition, and made himself disagreeable, that he did not appear to be physically disabled, and had no physical disability; and said:

"I would like to be as strong physically as I believe him to be. All that can be seen is that he is easy to get into an argument and disagreeable to get along with, the same as when he was a boy and young man, and the same as his father was,"--thereby intending to charge, and charging, that the plaintiff falsely, and by the use of fraudulent evidence as to his mental and nervous condition, obtained and was receiving a pension from the government, and for the purposes of having it understood and believed that plaintiff had fraudulently obtained a pension, and was fraudulently cheating the government of the United States out of money paid to him under the pension certificate. It is further alleged that the statements so made were untrue, and known by the defendant to be untrue. Plaintiff further alleged that he was obliged to carry on correspondence with the government and with other parties, and to make trips to distant cities, at great expense, to disprove defendant's statements, and that he was denied the credit which he had received and was able to obtain on account of the pension, and he was scandalized and humiliated before the community in which he lived, and provoked to wrath.

[183 Iowa 1303] To this petition and each count thereof, the defendant filed a demurrer. The demurrer was sustained, and the plaintiff given ten days in which to...