Kinney v. Cady, 45859.

• Citation: 232 Iowa 403,4 N.W.2d 225
• Decision Date: 16 June 1942
• Docket Number: No. 45859.,45859.
• Parties: KINNEY v. CADY.
• Court: Iowa Supreme Court

232 Iowa 403
4 N.W.2d 225

KINNEY
v.
CADY.

No. 45859.

Supreme Court of Iowa.

June 16, 1942.

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

Action for damages against defendant for not properly treating diseased hogs. Counterclaim by defendant for slander. Trial to jury and verdict for defendant. Plaintiff appeals.

Reversed.

Charles W. Barlow and L. R. Boomhower, both of Mason City, and Gibson, Stewart & Garrett, of Des Moines, for appellant.

L. A. Moe and Senneff & Duncan, all of Mason City, for appellee.

[4 N.W.2d 226]

HALE, Justice.

Plaintiff, on October 3, 1940, filed a petition claiming damages of the defendant for wrongfully treating hogs belonging to the plaintiff. To this defendant filed answer and counterclaim. In said counterclaim, as amended, he asked damages against the plaintiff for slanderous statements alleged to have been made by the plaintiff. To this counterclaim plaintiff filed answer which, as amended, denied generally the allegations of defendant's counterclaim and denied that the plaintiff mentioned, referred to, or spoke of the defendant, directly or indirectly to any of the persons charged. An amendment by plaintiff to his answer to the counterclaim asserted that even if the statements had been made by him they were privileged, for the reason that the persons named and referred to by defendant were employees of the plaintiff on farms of the plaintiff at the times stated, and that said statements were in connection with the plaintiff's business in which the employees were then engaged. This amendment, on objection of defendant, was refused by the court.

At the close of all the testimony both sides moved for a directed verdict. The motion of plaintiff was overruled and that of defendant sustained. Plaintiff does not appeal from the court's ruling on the motion directing a verdict against him on his petition, but appeals from the action of the court and jury on defendant's counterclaim.

The defendant is a veterinary surgeon living at Mason City. The plaintiff formerly practiced medicine. At the time of the trial he lived part of the time in Mason City, and was a man of large interests. With his wife he owned 3,600 acres of land in Cerro Gordo county, other farms in Iowa, considerable land in Canada, and had interests in oil wells in Texas. He raised hogs on a large scale on the Cerro Gordo county farm, in numbers running into the thousands. He had as manager for that farm J. E. Risden. The first deaths from disease among the hogs were on July 11, 1940, the dead hogs being removed to a rendering works. There was hog cholera in the neighborhood. Dr. Peter Malcolm was called to the ranch in August to look after the hogs, and treated them, and he called Dr. Cady, of Mason City, to come out. After a conference between Dr. Kinney, Dr. Cady, Dr. Malcolm, and Risden, the plaintiff left the matter to Risden, who, according to Dr. Malcolm, directed Dr. Cady to vaccinate the hogs, which he did by double vaccination, there being a total of about 3,500 so treated. It is unnecessary to go into the details of the treatment, but, as a result, the petition against Dr. Cady was filed by the plaintiff, charging negligence in the treatment, and in the care of the vaccine and virus. Out of the 3,454 hogs vaccinated 1,479 died, and there was a dispute between the plaintiff's agent, Risden, and the defendant, about the payment of Dr. Cady's bill. On the 21st of August, 1940, Dr. Cady caused a lien to be filed against the Kinneys for $1,556.86.

The controversy as to the malpractice was terminated by the court's ruling on defendant's motion for a directed verdict against the plaintiff, which was not appealed from and which we may assume has determined the question of liability for malpractice.

On the day that Dr. Kinney filed his petition for damages against Dr. Cady there was a meeting of Dr. Kinney's employees and their wives at one of the houses on the farm. At this meeting labor-and-management troubles were discussed. Prior to this time the dissatisfaction of the employees had resulted in a sit-down strike. The men submitted their complaints, blamed the farm manager for their troubles, and asked that a new manager be appointed. Plaintiff appointed Suby, one of their number, to be foreman, and Risden was later discharged. At this meeting certain employees-Suby, Hugi, Long, Dorsey, Watermiller, Erickson, Coonrod, and Shahan-were present. There was some conversation relative to the treatment the hogs had had, and it is alleged by defendant that Dr. Kinney, in the course of the conversation, said: “If I had some patients that had diphtheria, smallpox, and other diseases, and I vaccinated all of them for the same disease, I would be a rotten doctor.” It is denied by a number of witnesses that this was the exact language used, and it was stated by plaintiff's attorney in his opening statement that plaintiff did make the statement that if he had a lot of patients and some had smallpox, some diphtheria, and some other diseases, he would not believe he was doing the right thing if he treated them all for the same thing. However, the words charged were as heretofore stated. It is further charged by the defendant that the

[4 N.W.2d 227]

statement was false and defamatory, that it was uttered and understood as a charge of professional negligence and misconduct, and was for the express purpose of injuring the defendant.

The trial occupied considerable time, beginning January 13, and ending January 29, 1941, and it would not be practicable to set out the testimony in detail.

The plaintiff alleges error in various respects, but we need not refer to all assignments. We notice first the claimed error of the court in denying permission to plead privilege. During the progress of the trial, on January 20, 1941, plaintiff asked permission to file an amendment as follows: “Further answering Counts I, II, III, IV and V of defendant's counterclaim, the plaintiff denies that he ever made any statements as alleged in said Counts of said counter-claim. Plaintiff further states that, even had the statements been made by him as alleged by defendant in each, any and every Count of defendant's counterclaim (which plaintiff denies), the circumstances and conditions surrounding the alleged making of the said statements constitutes privilege, in that the parties and persons named and referred to by defendant in said Counts of his counterclaim were employees of the plaintiff and on the farms of the plaintiff at the times stated, all of whom were engaged in regular employment of the plaintiff at said times, and that said statements, if made (which plaintiff denies), were in connection with the plaintiff's business in which said employees were then and there engaged.” Counts 1, 2, 3, 4, and 5 of the counterclaim, of which count 4 is in substance the same as the words charged, were afterward, by amendment, withdrawn, and the spoken words heretofore set out, substituted. The amendment to the answer the court refused on defendant's objection that: “There is an attempt to plead upon a denial, a justification or mitigation which is not permissible. Before denial, mitigation or justification can be plead they must admit the speaking of the words, and it tenders no defense whatsoever in the form of the pleading. The defendant, in addition to the objections heretofore dictated into the record, objects to the filing thereof because the said Division 6 of said amendment does not properly plead privilege, qualified privilege or plead any matters which would be in any manner defensive, it being merely a conclusion.”

The last paragraph of defendant's objection above set out can not be sustained as against the pleading objected to. We think that plaintiff's amendment if sustained by the evidence would properly present a question of qualified privilege and would be defensive. As to the other part of defendant's objection, in argument defendant states: “We do not question the statement that if privilege had been properly pleaded and there had been facts justifying the submission of the plea to the jury, the...