Ladwig v. Heyer

• Decision Date: 14 November 1907
• Citation: 113 N.W. 767,136 Iowa 196
• Parties: LADWIG v. HEYER.
• Court: Iowa Supreme Court

136 Iowa 196

113 N.W. 767

LADWIG

v.HEYER.

Supreme Court of Iowa.

Nov. 14, 1907.

Appeal from District Court, Plymouth County; J. L. Kennedy, Judge.

Action at law to recover damages for alleged slander. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Martin & Martin and McDuffie & Keenan, for appellant.

Sammis & Bradley, for appellee.

WEAVER, C. J.

The plaintiff's cause of action is stated in six counts. The first count alleges that defendant, in the presence of certain named witnesses, said to plaintiff, “When you get ready to steal some more of my oats, come on down,” and that by said words defendant meant and was understood by the witnesses to mean that plaintiff had in fact stolen oats. Each of the remaining five counts alleges that defendant in as many different instances and in the presence of certain witnesses said of the plaintiff: “Ladwig is a thief.” The defendant denies each count of the petition, and, by way of counterclaim, alleges that plaintiff at a certain time and place and in the presence of witnesses said of and concerning the defendant, “You are a thief. You stole a bed out of the hotel”; and, again, that plaintiff spoke of the defendant, and said, “Heyer is a thief. He stole a bed out of the hotel.” To the counterclaim plaintiff answered in denial, and in a separate count pleaded other alleged facts in mitigation. The appellant seeks a reversal of the judgment below on several grounds, to which we shall briefly advert.

1. It is said that plaintiff offered no proof to support one of the counts set up in the petition, and that the court erroneously failed to withdraw said count from the jury. It is true that certain witnesses introduced upon the part of plaintiff to sustain the charge or charges set forth in the petition failed to testify that defendant said, in so many words, “Ladwig is a thief,” but in all or nearly all of said instances such witnesses did testify to language from which it might fairly be inferred that he intended to charge the plaintiff with larceny. For instance one Wyette, being offered to prove the claim of plaintiff as set up in the second count, testified that the language of the defendant was to the effect that plaintiff took oats that did not belong to him, and defendant thought he was a rogue. So, also, one Perry, testifying in support of a like charge of slander set up in another count, said that defendant spoke to him of some deal he had with plaintiff about oats and other matters, and said that Ladwig had taken some stuff that did not belong to him. While the statements thus shown do not correspond in form to those alleged in the petition, the jury would be justified in finding that defendant intended thereby to charge the plaintiff with larceny. Such being the case, we think that the proof was admissible in support of the allegation that defendant charged the plaintiff with being a thief, and, if such be the case, there was no error in failing to withdraw the counts referred to from the consideration of the jury. Upon this subject, the court instructed the jury that plaintiff was not required to prove the speaking of the slanderous words by the defendant exactly as stated in the petition, but that it would be sufficient to prove the speaking by him, “at the time and place alleged, substantially the words so set out or a sufficient number of them to amount in their common meaning to charge stealing or larceny against the plaintiff.” In another paragraph of the instructions, the jury were told that evidence of the speaking of other words than those charged in the petition had been admitted for the sole purpose of showing malice in the speaking of the words charged, and should only be taken into consideration in so far as they tend to show malice on part of the defendant in speaking the words charged concerning the plaintiff. These directions in our judgment embody the law as applicable to the particular question now under consideration. It is competent in actions for slander to prove a repetition of the slanderous charge for the purpose of showing malice. See Halley v. Gregg, 74 Iowa, 564, 38 N. W. 416. These repetitions need not be shown to have been made in precisely the same language as the original slander charge. If the repetition is in words of like import, they are admissible to show malice, even though the words declared on are actionable per se. Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341. It may also be said that the court distinctly directed the jury that plaintiff could recover only by proof of the malicious speaking of the alleged slanderous words, and that, if the plaintiff had failed to establish any of the alleged slanders, he could not recover damages thereon. We must presume that the jury obeyed the instructions of the court in this respect, and that no damages were assessed on any charge not thus established.

2. Plaintiff having testified that defendant, in the presence of others, said to him, “When you get ready to steal any more of my oats, let me know,” he was asked on cross-examination whether there had not been prior...