Mills v. Flynn

• Decision Date: 21 October 1912
• Citation: 137 N.W. 1082,157 Iowa 477
• Parties: STELLA W. MILLS, Appellee, v. BERT FLYNN, Appellant
• Court: Iowa Supreme Court

137 N.W. 1082

157 Iowa 477

STELLA W. MILLS, Appellee, v. BERT FLYNN, Appellant

Supreme Court of Iowa, Des Moines

October 21, 1912

Appeal from Washington District Court.--HON. BYRON W. PRESTON Judge.

ACTION for slander. Defendant denied the alleged slander and pleaded certain facts in mitigation, which need not be here set forth. On the issues joined, the case was tried to a jury resulting in a verdict and judgment for plaintiff in the sum of $ 4,000, and defendant appeals.

Reversed.

Marsh W. Bailey, and Wade, Dutcher & Davis, for appellant.

Ranck & Bradley, and Eicher & Livingston, for appellee.

OPINION

DEEMER, J.

Defendant is a retired farmer living at the time of trial at Riverside, Iowa. He was the owner of a farm near said town, and at the time it is claimed the alleged slanderous words were spoken plaintiff and her husband were his tenants, and as such were living upon the farm. It is claimed in the petition, which is in three counts, that during the years 1908 and 1909 the defendant spoke of and concerning the plaintiff the following false and slanderous words:

Mrs. Mills will never get any better, as she has a disease which is incurable, and which she has caught from her husband, Frank Mills, and he caught it somewhere else. Mrs. Mills is afflicted with the gonorrhoea and syphilis, and you know what that is. She will never get well.

Mrs. Mills will never get any better as long as she lives with that man; she will never get well; she has a bad disorder that she caught from him, and he isn't fit for to have a woman. She has a venereal disease known as the syphilis and clap. . . .

The Mills have the syphilis. They have it bad, and are in bad shape. They will not get well.

These separate statements being found in the respective counts of the petition. At the close of plaintiff's testimony she was permitted, over defendant's objections, to amend the first count of her petition to conform to the proof, and in this she alleged that, in addition to the alleged slanderous statement made by defendant as charged in the first count, he said: "Mrs. Mills has the pox; she will never be any better. She is rotten with the pox."

Defendant denied the alleged statements, and pleaded that it was currently reported in the neighborhood where plaintiff lived that she and her husband had syphilis, or some other venereal disease; that because of their occupancy of his farm he was interested in knowing the facts, and that he made inquiries concerning the matter and heard these various rumors and reports; that he did not repeat the same, save as he was making inquiries with reference to the truth thereof; and that he had no other motive than to ascertain their truth. These facts were pleaded both in justification and in mitigation. Upon these issues the case was tried, with the result above indicated. Something like fifty-two errors are assigned; but, as the argument is confined to something like nine principal propositions, we shall confine our attention to the points there made.

I. It is claimed that the court was in error in permitting plaintiff to file the amendment to her petition to conform the pleadings to the proof, and that in any event the trial court erred in not granting defendant a continuance to meet the issues tendered thereby. Neither proposition is tenable. It is always permissible in such cases for one to amend in order to make the pleadings conform to the proof, and, as the testimony was in the record and did not depart substantially from the charge as originally made, there was no error in permitting the amendment. The amendment did no more than slightly change the language said to have been used by defendant to Tobin and others, and gave the date as in February, instead of January. Defendant was fully advised by the original pleading as to the nature of the slander and as to whom uttered, and no reason is shown why a continuance should have been granted. The only showing is that counsel never had heard it claimed that defendant said plaintiff had the pock, and that he had no opportunity to examine as to the nature of the disease, or whether or not plaintiff was afflicted with it, and had no opportunity to prepare for trial on that issue. He surely was advised of the claim that defendant had said plaintiff had syphilis, gonorrhoea, and clap, or other venereal disease, and assuming, as we must, his knowledge of the use of terms, it must be assumed that he knew that pock is but another name for syphilis, or what has been called "French or Spanish pox." Webster's International, "Pock." It is well known that among a certain class of people "pock" is a synonym of "syphilis." See Webster's International, word "syphilis." Surely there was no reason for a continuance.

II. Over defendant's objections, plaintiff was permitted to prove as a part of her main case that she never had any of the diseases with which she was charged. It is true that defendant did not justify by pleading the truth of the charges, and it is also true that plaintiff was not required to negative the truth; for the law presumes that the party charged was not so afflicted. But we have held in several cases that it is not error for plaintiff to prove that the charge was untrue. Locke v. Chronicle Co., 107 Iowa 390 at 391, 78 N.W. 49; Moffitt v. Chronicle Co., 107 Iowa 407, 78 N.W. 45; Berger v. Publishing Co., 132 Iowa 290 at 293, 109 N.W. 784.

III. Plaintiff was permitted, over objections by defendant's counsel, to testify as to the number and ages of her children, and that they were present in court, and were each and all healthy. This was done under promise of counsel to make the testimony competent by medical evidence. This they failed to do, and on motion of defendant's counsel the testimony was stricken from the record for failure to furnish this proof. Surely there was no error here of which defendant may complain.

IV. In her petition plaintiff alleged that she suffered special damages as follows: "That by reason of the speaking of the said false, malicious, scandalous, and de-defamatory words, well knowing at said time that the same were false, the plaintiff has been greatly injured in her good name and character, deprived of social intercourse among her neighbors and in the community in which she resides, brought into public scandal and disgrace, suffered much mental pain and anguish, and sustained a severe nervous shock upon learning of the said false statement made by the said defendant. That by reason thereof the plaintiff has sustained damages in the sum of $ 2,500, no part of which has been paid." She offered testimony in support of these allegations, and was permitted, over objections of defendant, to testify to the breaking up of her church relations and to a general social ostracism. It is said that this testimony was not admissible, because the results were in no manner traced to defendant. It is true, of course, that defendant is not chargeable with slanders or rumors uttered by others, and for which he was in no way responsible. Schaffhauser v. Hemmer, 152 Iowa 200 at 204, 131 N.W. 6; Olmsted v. Brown, 12 Barb. (N. Y.) 657; Kersting v. White, 107 Mo.App. 265 (80 S.W. 730).

But it is also true that testimony as to mental pain and suffering, humiliation, and disgrace are all proper elements of damage, and may be shown under proper allegations. Davis v. Mohn, 145 Iowa 417, 124 N.W. 206. The court admitted the testimony for this definite purpose: "By the Court: It is admitted for the purpose as indicated by counsel for which they offer it, to wit, as it may have a bearing, if at all, upon the feelings of the plaintiff, and not upon the feelings of the others toward her." The examination of the witness continued in this manner:

Q. Did you at any time learn that the defendant had reported in the vicinity of Riverside, in which you then resided, that you had syphilis? A. I did. Q. About when did you hear this? A. It was the 1st of September two years ago. It will be two years next September. That would be the 1st of September, 1909. It was shortly after I heard it. Q. How did the information of Mr. Flynn's publication of these charges affect you? A. I can hardly express it. It was so terrible. It is a terrible thing to be accused of. I can't tell you how I felt. I walked the floor at night; couldn't eat; couldn't sleep; and I couldn't do anything. I felt that I must be vindicated. I felt that I should die, and I felt I couldn't die; for if I would die I would leave this on my children, and if I would it would come back. I didn't know what to do. Q. How did it affect your emotions as to crying or otherwise? A. I should think it did. I had a complete nervous breakdown. I suppose it was foolish. Q. What effect did this have upon you when you met your friends and neighbors afterwards? A. I didn't meet them very often, because I wouldn't go any place. I felt that I was watched, and I couldn't go feeling right and comfortable.

Upon cross-examination, she was asked regarding the treatment and conduct of certain parties toward her and as to what they said; and as to this the defendant, of course, can not complain. Finally, the following record was made:

Defendant now moves the court to strike from the records all the testimony tending to show any ill treatment towards the plaintiff, or any shunning of the plaintiff by the members of any of the lodges or societies or clubs to which the evidence shows she belonged, for the reason that there is no testimony tending to show that the defendant is in any way responsible for such treatment. Second. The defendant moves to strike from the record all the evidence tending to prove ill treatment of plaintiff by any person or persons other than the witness Tobin and the witness Herring,...