Miller v. First Nat. Bank, of Gladbrook

• Decision Date: 17 December 1935
• Docket Number: 42950.
• Citation: 264 N.W. 272,220 Iowa 1266
• Parties: MILLER v. FIRST NAT. BANK OF GLADBROOK et al.
• Court: Iowa Supreme Court

264 N.W. 272

220 Iowa 1266

MILLER v. FIRST NAT. BANK OF GLADBROOK et al.

No. 42950.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Tama County; Carl B. Stiger, Judge.

Action for libel. Demurrer to petition. Demurrer sustained. Plaintiff elects to stand upon the ruling, and not plead over. Judgment for defendant, and plaintiff appeals.

Affirmed.

Statutory definition of libel applies to civil damage actions for libel. Code 1931, § 13256.

Boardman & Cartwright, of Marshalltown, for appellant.

D. B Kliebenstein, of Gladbrook, and Reed, Beers & Graham, of Waterloo, for appellees.

PARSONS, Justice.

The plaintiff herein, E. G. Miller, is the appellant in this case, and the defendant First National Bank of Gladbrook Iowa, is the appellee in the case, as is Martin Mee, the president of the defendant bank. The parties hereinafter will be designated as plaintiff and defendant.

The petition alleges that the plaintiff consigned 174 head of sheep to a Chicago firm, Alexander Conover & Co., which were received on or about the 1st of December, 1930, at Chicago, and were sold by the consignee to Swift & Co. for the account of the plaintiff; that on the 2d day of December, 1930, the defendant advised the consignee " that the bank had a chattel mortgage on said shipment of sheep and that the proceeds of the sale should be held intact subject to its claim," and on account of the claim of defendants the consignee held up the payment of the sale price of $784.71.

It was further set up in the petition that the defendants were without right to claim that the sheep were the property of one Reisinger, and were covered by a chattel mortgage which the bank held, and alleges that such sheep were the absolute property of the plaintiff and that Reisinger at no time had any right, title, or interest in said sheep, and that they were placed upon the Reisinger farm for the purpose of pasturing and feeding by Reisinger, for and on behalf of the plaintiff. It sets up further that the defendant, through its officers and agents, by claiming a mortgage on said property, was attempting to state that plaintiff was trying to assist Reisinger dispose of mortgaged property, which the plaintiff avers to be libel per se. He also sets up that the defendant bank and its officers continued to claim the funds in the hands of the consignee and to claim a mortgage upon the sheep until February 2, 1932, at which time the funds were released. It alleges also that the plaintiff had been obliged to employ the law firm of Boardman & Cartwright to represent him, and had expended $350 for their services, which was reasonable, and that several trips were made by the plaintiff at an expense of $70; that the plaintiff was a large dealer in livestock in Marshall county, and adjoining counties, and enjoyed the confidence of a large number of livestock dealers and commission men in all parts of the middle west; that the wrongful and malicious acts of the defendants had caused the plaintiff great damage to his reputation and good name; and asked for judgment against the defendants in the sum of $25,000.

The defendant filed a motion to strike the petition in that it failed to state a cause of action; in that the statement claimed to have been written by the defendants was not a libel per se, and no special damage had been alleged, and that there was no allegation that said statement was made maliciously. In a paragraph of the motion to strike the defendant asked to strike from the petition of plaintiff the paragraph ending with the words, " subject to their claim," for the reason it was immaterial and surplusage and stated no cause of action against the defendant.

Paragraphs 3 to 10 of the motion also asked to strike certain parts of the petition, but it is impossible to tell what parts came in those paragraphs because they are not otherwise identified than by the page of the original pleading, and we do not have that before us. However, this motion to strike was by agreement of the parties submitted to the court as a demurrer, and on the 7th of December, 1934, the court sustained the demurrer, and on the 11th of December, 1934, the plaintiff elected to stand upon the ruling of the court sustaining defendants' demurrer to plaintiff's petition and refused to plead over. Petition was dismissed, judgment was entered against plaintiff for costs, to all of which plaintiff excepted and appealed to this court.

However, as the defendant seems to have moved to strike each and every allegation of the petition for the various grounds set out, it was perhaps as well to treat this demurrer as a motion.

Our statute treating of demurrers in causes of actions at law, in section 11141, says: " In actions triable at law, any party may demur to any pleading filed by any adverse party upon one or more of the following grounds appearing on its face:" There were six numbered subdivisions of this section, No. 5 being, " That the facts stated in the pleading attacked do not entitle the adverse party to the relief demanded."

We gather from the petition that the action complained of by the plaintiff is in writing to Alexander Conover & Co. " that the bank had a chattel mortgage on said shipment of sheep, and that the proceeds of said sale should be held intact subject to their claims." This is the only thing set out in the petition as to what was said or done. It further sets out that the bank, without right, claimed the sheep to be the property of Reisinger and consequently were covered by a mortgage which the bank claimed to own on certain livestock owned by Reisinger. There is no allegation anywhere in the petition that any of these acts were done maliciously, except if it be found in the paragraph of the plaintiff's petition reading: " That the defendants through its officers and agents, by claiming a mortgage on said sheep aforesaid, did infer and state that this plaintiff was attempting to assist the said C. A. Reisinger in disposing of his mortgaged property, which statement this plaintiff avers to be libel per se."

It is difficult to see how, if the bank in good faith was claiming the proceeds of the shipment under the thought and belief that it had a mortgage upon the property, it would be guilty of libel or slander in writing as it must have written, or in communicating otherwise with Alexander Conover & Co., the statement quoted heretofore. At best, it is difficult to see how it could have been even slander of title, which formerly was an action only for slander of title to real property. It at present may be predicated on either real or personal property. 37 C.J. § 595.

It is also laid down in such an action that malice is a necessary ingredient to entitle plaintiff to recover; that it is the gist of the action; that it cannot be maintained if the claim was asserted by defendant in good faith, and if the act complained of was founded upon probable cause or was prompted by a reasonable belief, although the statement may have been false. 37 C.J. § 598.

Section 591 of 37 C.J. also provides that " slander of title" may be defined as a false or malicious statement, oral or written, made in disparagement of a person's title to real or personal property or some right causing some special damage.

This is also well supported in Fearon v. Fodera et al., 169 Cal. 370, 148 P. 200, and Ann.Cas. 1916D, 312, which lays down the rule that, " Malice, express or implied, in the making of slanderous statements is an essential ingredient of a cause of action for damages for slander of title, without proof of which such action must fail. This quotation is from the note, and cites thereto Canadian cases, federal cases, cases from Alabama, California, Colorado, Indiana, Kansas, Louisiana, Massachusetts, Michigan, Missouri, Nevada, New Jersey, North Carolina, Pennsylvania, Rhode Island, and Wisconsin. The note lays down the rule, Ann.Cas. 1916D, on page 320, that where evidence shows that a privileged statement in slander of title was made in good faith and solely to protect the interest of the person making it, malice will not be presumed in law, nor can he be held liable for a mere mistake on his part."

" Libel," in section 13256 of our Code 1931, is as follows: " A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends."

36 C.J. 1145, says: " Often the statutes define ‘ libel’ ; then such statutory definitions govern. Where a statute gives a full and complete definition of ‘ libel’ no other definition may be considered in arriving at a conclusion as to whether a publication constitutes libel."

The plaintiff in his brief says: " The acts of the defendant bank had a natural tendency to injure the plaintiff in his business, therefore, it was libelous per se," and cites Morse v. Times-Rep. Printing Co., 124 Iowa, 707, 100 N.W. 867; Hughes v. Samuels Bros., 179 Iowa, 1077 159 N.W. 589, L.R.A. 1917F, 1088; Turner v. Sam Brien, 184 Iowa, 320, 167 N.W. 584, 3 A.L.R. 1585; Burghardt v. Scioto Sign Company, 191 Iowa, 384, 179 N.W. 77.We have examined these cases and cannot see how they support the text of plaintiff's statement. Morse v. Printing Co. concerns a statement published in a newspaper at Marshalltown, Iowa. It is true that the article did not exactly charge the defendant therein with a crime, but it did contain matter which, if read by the...