Herzman v. Oberfelder

• Decision Date: 16 June 1880
• Citation: 6 N.W. 81,54 Iowa 83
• Parties: HERZMAN v. OBERFELDER
• Court: Iowa Supreme Court

6 N.W. 81

54 Iowa 83

HERZMAN v. OBERFELDER

Supreme Court of Iowa, Des Moines

June 16, 1880

Appeal from Shelby Circuit Court.

ACTION for slander. The alleged defamatory words are as follows "The old woman (meaning thereby this plaintiff) stole goods out of the stock upon which I had a mortgage, and cheated me out of several hundred dollars. They (meaning plaintiff and her husband) must have taken some goods away. I have positive proofs that the goods were taken away there in the night, and in trunks (meaning thereby that the plaintiff and her husband had taken goods from the mortgaged stock) that unless they (meaning plaintiff and her husband) settle with me, or satisfy me, I will lodge them in the penitentiary, as I have many proofs for so doing. I had a mortgage upon E. Herzman's goods in his store to secure some eleven hundred dollars, and they (meaning E. Herzman and this plaintiff) stole the stock out of the store, and secreted a large quantity of the goods, and thus cheated me out of my security and debt."

The defendant pleaded three defenses: 1. A denial. 2. Justification, and 3. Mitigating circumstances. There was a trial by jury, and a verdict and judgment were rendered for two hundred dollars. The defendant appeals.

REVERSED.

Sapp Lyman & Ament, for appellant.

Clinton, Hart & Brewer, for appellee.

OPINION

ADAMS, CH. J.

I. The first question presented is in regard to the admissibility of the deposition of one Burke, for the purpose of proving the speaking of the alleged defamatory words. The defendant objected to the deposition, upon the ground that the cross-examination of the witness shows his testimony to be immaterial and incompetent, in that he does not testify to the statements of the defendant, but simply to his own inferences and impressions drawn from conversations had by him with the defendant. The objection was overruled, and the deposition admitted.

The deposition so far as it pertains to the speaking of the words is as follows: "Mr. Oberfelder told me that he had a chattel mortgage on the Herzman stock in the years 1877 and 1878; that they were to turn over money as the goods were sold; that he got a small amount of cash in proportion to what he expected, and that the goods were not in the store, had been spirited away or were gone, and that he was swindled in the transaction some hundreds, I don't know how many. This is about the substance from what I gathered from him. In this matter I think he meant both Mr. and Mrs. Herzman." On cross-examination he said: "I do not pretend to give the exact language of the defendant. My testimony is the inference I arrived at, from my conversation with defendant, expressed in my own language. My impression is that he held both Herzman and wife equally guilty."

In giving the substance of what the witness gathered, he does not say that the defendant said anything about the plaintiff, nor anything from which it could reasonably be inferred that the defendant said anything about the plaintiff.

When the witness says: "I think he meant both Mr. and Mrs Herzman," it is plain to be seen that that was merely the witness' inference, and upon his cross-examination, he expressly says so. We cannot go beyond the...