Mowry v. Reinking

• Citation: 213 N.W. 274,203 Iowa 628
• Decision Date: 05 April 1927
• Docket Number: 36718
• Parties: HENRY W. MOWRY, Appellee, v. CHARLES REINKING et al., Appellants
• Court: United States State Supreme Court of Iowa

213 N.W. 274

203 Iowa 628

HENRY W. MOWRY, Appellee, v. CHARLES REINKING et al., Appellants

No. 36718

Supreme Court of Iowa, Des Moines

April 5, 1927

Appeal from Jones District Court.--ATHERTON B. CLARK, Judge.

Action at law, to recover damages for an alleged conspiracy to libel, defame, and otherwise injure the reputation and business and social standing of the plaintiff. Verdict and judgment for plaintiff, and the defendants appeal.

Reversed.

Charles M. Dutcher, Don Barnes, Otto L. Schluter, and Park Chamberlain, for appellants.

J. C France, C. J. Lynch, and Johnson & Donnelly, for appellee.

OPINION

STEVENS, J.

I.

The conclusion reached in this case necessitates a somewhat extended statement of the issues, particularly of the allegations of the petition and of the evidence offered on behalf of appellee in chief.

The petition charged that appellants, on or about the day of May 1921, "wrongfully, unlawfully, wickedly, and maliciously combined, confederated, and conspired together, each aiding, assisting, and abetting the other, to libel, defame, injure, and destroy the plaintiff in his standing as a citizen and member of the community in which he then lived, and to cause to be withdrawn from him the confidence and association of his neighbors and associates." It was further alleged in the petition that a large proportion of the population of Lowden and vicinity, which was the residence of the parties hereto, is of German birth and parentage, and that, prior to the entry of the United States into the World War, the people had continued German customs, honored German leaders, perpetuated German traditions and institutions, and spoken the German language almost exclusively; that, upon the entry of the United States into the war, the sympathy of the community continued to be largely in favor of Germany; that appellee, by his active and vigorous participation in the activities of the government during the war, incurred the enmity of appellants; that, prior to the war, and from the 10th to the 15th of June of each year, a celebration called the Lowden Deutscher Krieger Verein, or Kriegerfest, was held in Lowden, in which German veterans of the Franco-Prussian war marched in street parades, carrying a German flag and other military German insignia and emblems; that such celebrations were distinctively German in character, and for the purpose of perpetuating German traditions; that, in May, 1921, the local post of the American Legion, the membership of which is largely German, sought to hold a celebration at Lowden on the 11th day of June; that, prior to May 9th, appellee was the mayor of said town; that, as such officer, he declined to issue a permit to the Legion Post to hold said celebration; and that, to avoid trouble, on May 9th, appellee resigned his office as mayor, and one Mensing was appointed as his successor; that thereafter, the city council yielded to the importunities of the community to revive the Kriegerfest, with all its customs, spirit, and tradition, and granted a permit to the post to hold said celebration. The petition further charged that, in pursuance of the alleged conspiracy, a meeting of the citizens of the community was called and held on the evening of May 8th; that resolutions libeling appellee were adopted at said meeting, which was attended by more than 500 people; that same, together with other libelous and defamatory articles, were published of and concerning appellee, on various dates, in the Lowden News, a local publication. Copies of said resolution and others claimed to have been published in furtherance of the alleged conspiracy were attached as exhibits to the petition. In one of the articles published in the local paper, the following charges against appellee were made:

"Mr. Henry W. Mowry's patriotism had been mixed with a strong percentage of whiskey. If, to suggest one more of more instances, that public which has been deceived by Mr. Henry W. Mowry could have seen that gentleman sprawled, dead drunk, upon a sand pile in a local lumber yard, the sport of small boys, it is somewhat more than likely that their admiration would now be as lukewarm as that of the people here at home who know Mr. Henry W. Mowry for what he is, and not what he poses to be. That is the issue. It will come to light. It will be made public."

A motion to strike a large part of the allegations of the petition was overruled, and the defendants answered. Separate answers were filed by Hoeltje and the remaining defendants who joined in the same answer. There was a general denial by all of the defendants of the allegations of the petition, together with pleas in mitigation of damages. The defendant Hoeltje also pleaded the truth of the charges of intoxication quoted above. All of the defendants further alleged that the resolutions adopted by the mass meeting at the city hall on the evening of June 8th were "for the purpose of clearing the good name of the citizens of Lowden and vicinity and of the local post of the American Legion from the aspersions that had been cast upon the same by the conduct and statements aforesaid of the plaintiff. That said meeting was actuated by no other motive."

The defendants further alleged that the plaintiff had circulated stories in the community as to the loyalty of the citizens, and had visited other near-by towns and Legion posts, for the purpose of misrepresenting the truth as to the purpose of the proposed celebration of the Legion, of the attitude of the German population as to the war, and the alleged attempted revival of the Kriegerfest and of German customs, traditions, etc. The answers are lengthy, and a further statement of the issues tendered thereby is not necessary to the proper decision of the questions presented for review.

Something like 88 rulings of the court, most of which relate to the admission and exclusion of testimony, are complained of by appellants. We do not deem it necessary to refer specifically to many of these alleged erroneous rulings, as they may be better disposed of together.

It is the view of counsel for appellee that the assignments of error, particularly those relating to the admission of testimony offered in chief, are insufficient, under the rules of this court, to justify a review thereof. The assignments in each instance include the questions, objections, and answers of the witness, and we think they are fairly sufficient in this form. In any event, as the judgment must be reversed upon other grounds, in view of a possible retrial of the case, we feel it incumbent upon the court to review these assignments and to point out what seems to us an erroneous theory upon which much of the testimony complained of was admitted.

Shortly prior to June 8, 1921, eight of the appellants, with others, as a duly appointed committee, met at the American Trust & Savings Bank of Lowden, and a notice signed by them and others was prepared and sent out to the community, calling a mass meeting at the city hall on the evening of June 8th, "to [as stated therein] deliberate about the best efficient way in which to stop further disturbances of the peace of our community." This notice was published in the Lowden News. The article, of which the notice was a part, included a quotation from the Evening Gazette of Cedar Rapids, in which reference is made to the refusal of the commander of the Legion to sanction the celebration on June 11th, and also to the notoriety obtained by the Lowden community during the war, and otherwise calling attention to the proposed Legion celebration and former German celebrations. A mass meeting, attended by more than 500 people, including appellee, was held at the city hall on the evening of June 8th, in pursuance of the foregoing notice. The local pastor of a German church served as chairman of the meeting. Resolutions previously prepared, which charged appellee with having slandered and maligned the community, causing various newspapers to publish articles reflecting upon the loyalty of the citizens and the good name of Lowden and its community, were unanimously adopted. The resolutions are, in part, as follows:

"To stop any further agitation by the above named Henry Mowry and his associates (if such be) we request of them a satisfactory explanation or apology in writing for their conduct and machinations in this regard, especially for their charges that

"(A) This community advocated a celebration which commemorates a victory of German arms over the French in the Franco-Prussian War;

"(B) That such victory annually celebrated by the Lowden community up to the time of the World War, and

"(C) That the date in June chosen by the Legion Post for their celebration was chosen primarily by the parents and relatives of the American Legion boys and not by the Legion boys themselves."

The resolutions further designated the mayor and other representative citizens of the community, to receive such explanation or apology as appellee would make. Subsequently, the remarks of the chairman of the meeting and the resolutions were published in the local paper. Appellee offered no explanation or apology within the time fixed, and on June 17th, an article declaring the appellee unworthy of the further respect of the community, and otherwise reflecting upon him, was published in the Lowden News, under the caption:

"Mowry Loses Lowden Respect. H. W. Mowry, By Failing to Offer Explanation or Apology for Libelous Accusations, Loses Respect of Community. - - - Silence Admission of Guilt. - - - Failure to Offer Apology or Alternative Explanation May be Interpreted as Inability to Face Citizens' Accusations."

Testimony was also introduced, tending to show that former friends thereafter ignored and refused to speak to him; that ...