Kluender v. Semann

• Decision Date: 15 February 1927
• Docket Number: 37859
• Citation: 212 N.W. 326,203 Iowa 68
• Parties: WILLIAM J. KLUENDER, Appellant, v. A. H. SEMANN, Appellee
• Court: Iowa Supreme Court

212 N.W. 326

203 Iowa 68

WILLIAM J. KLUENDER, Appellant, v. A. H. SEMANN, Appellee

No. 37859

Supreme Court of Iowa, Des Moines

February 15, 1927

Appeal from O'Brien District Court.--M. E. HUTCHISON, Judge.

An action for slander. A demurrer to plaintiff's petition was sustained. Plaintiff refused to plead further, and judgment was rendered accordingly. Plaintiff appeals.

Affirmed.

James B. Linsday, for appellant.

W. J E. Thatcher and Heald, Cook & Heald, for appellee.

ALBERT J. EVANS, C. J., and DE GRAFF and MORLING, JJ., concur.

OPINION

ALBERT, J.

The substance of plaintiff's petition is that, about the month of April, 1923, the defendant orally uttered, of and concerning the plaintiff, to one Christ Pries, who resided in the town of Paullina, the following false, malicious, and defamatory words, to wit:

"He is a dope fiend. He takes so much dope that he is not right in his mind, and you cannot believe a thing he says."

The petition further states that the defendant intended by said statements to charge the plaintiff with using narcotic drugs unlawfully and excessively, and with violating the laws, in that he was having in his possession narcotic drugs unlawfully, and for the purpose of using the same unlawfully and was thereby charging plaintiff with the violation of the penal statutes of the state of Iowa and of the United States; that the said statements were false and untrue, and were made maliciously, and with knowledge of their falsity and untruth, for the purpose of expressly injuring the good name, character, and reputation of the plaintiff with his friends and neighbors in said community; that, by reason of said false and slanderous statements, as above stated, plaintiff has been damaged in the sum of $ 10,000. Wherefore he asks judgment for $ 10,000 actual damages and $ 5,000 exemplary damages.

To this petition a demurrer was interposed, on the ground that the petition did not set out a cause of action, or entitle plaintiff to any judgment, in this:

"The words alleged to constitute slander are not slanderous, and do not constitute slander, and the plaintiff is not entitled to any damages by reason thereof, and said words do not charge the plaintiff with the commission of any crime."

There are some elementary principles of law which lie at the threshold of this case. In Abrams v. Foshee, 3 Iowa 274, we said:

"To maintain an action of slander, the consequence of the words spoken must be to occasion some injury or loss to the plaintiff, either in law or in fact. As the declaration in this case claims no special damages, or a loss or injury in fact, we are left to inquire whether the charge referred to in the instructions refused was of such a character as to amount to an injury in law. To determine this, it becomes material to ascertain in what cases this action may be maintained, without proof of special damages."

This distinction thus pointed out corresponds largely, if not wholly, with the ordinary phrases used by text-writers and the court,--words being actionable "per se" or "per quod." The words which are actionable at law are ordinarily designated as actionable "per se," while those actionable on the facts are known as actionable "per quod." 36 Corpus Juris 1150. In other words, certain words or language the law...