Mulvaney v. Burroughs
| Decision Date | 19 October 1911 |
| Citation | 152 Iowa 439,132 N.W. 873 |
| Parties | MULVANEY v. BURROUGHS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cherokee County; F. R. Gaynor, Judge.
Action for libel and slander. The first count of the petition charged libel and the second slander. Various defenses were interposed by defendant, and upon trial to a jury a verdict was returned for defendant on the first count of the petition, and for the plaintiff on the second. The damages were fixed at $900, and from a judgment for that amount defendant appeals. Affirmed.McCulla & McCulla and J. M. Parsons, for appellant.
J. U. Sammis and F. E. Gill, for appellee.
As the jury found for defendant on the charge of libel, we need only consider the case in so far as the alleged slander is concerned. The charge is that defendant said in the presence and hearing of the members of the city council of Cherokee, Iowa, the mayor, the city clerk, the marshal, and many citizens of the city, “that he, Burroughs, had discovered that the case between himself and the city of Cherokee, Iowa, was reversed in the Supreme Court, because of deception and fraud practiced on said court and because of forgery, that he had discovered that ‘Exhibit A,’ shown in appellant's abstract of the record, he holding the printed abstract in his hand, was and is a forgery; that the name of ‘W. C. Gray’ on said exhibit was forged, and that ‘I have traced the forgery to you,’ pointing his finger at this plaintiff, and that at that time the said defendant further said, in the presence of the said mayor, city clerk, marshal, and members of the city council and other citizens, that this plaintiff was guilty of the crime of forgery in the making of said abstract of record, upon which said cause was submitted to the Supreme Court, and that this plaintiff had made and manufactured the Exhibit A shown in said abstract, and that before the photograph was taken, which was shown in said abstract, that this plaintiff had forged the name of ‘W. C. Gray,’ official shorthand reporter, to the same, and that he was absolutely certain of this fact; that at said time and place the said defendant repeated several times the charge that this plaintiff was guilty of the crime of forgery, and that he would settle it with him, meaning that he would settle it with this plaintiff; that on different occasions during the progress of said meeting the said defendant broke out and made and repeated the same charges as above set out against this plaintiff.”
The defenses pleaded to this count were a general denial, a plea of justification and a plea in mitigation. One plea in justification was stricken on motion, as well as another defense pleaded in what is known as the “sixth division” of the answer. Defendant also pleaded a counterclaim in two counts. One of these was not submitted to the jury, and this is made one of the grounds for reversal. The main propositions relied upon are that the court erred in not requiring the jury to answer certain special interrogatories submitted to them, erred in refusing to submit the second count of defendant's counterclaim, and erred in overruling defendant's motion for a new trial based upon newly discovered evidence.
[1] In his brief of points defendant also says that the court erred in striking out certain defenses pleaded by him. This proposition is not argued for the reason that counsel thought it too plain for argument, or because he had no faith in it. Whatever the motive, we are left without any argument, and are asked to wade through the abstract and analyze pleadings and motions covering nearly 20 printed pages in an effort to discover error. This we must decline to do without argument from counsel. However, a cursory examination of the record discloses no error.
[2] Defendant's plea of justification was not sufficient for the reason that he did not admit the speaking of the words charged. On the contrary, he stated in this plea that he used other and different words, and that he was justified in what he said. It is, of course, elementary that the plea of justification must be as broad as the charge. Forshee v. Abrams, 2 Iowa, 571;Bearsley v. Bridgman, 17 Iowa, 290;Hollenbeck v. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306;Morse v. Times Co., 124 Iowa, 707, 100 N. W. 867.
[3] Again, the plea appears to be insufficient because it averred defendant's belief in the truth of the charge rather than the truth in fact. Fountain v. West, 23 Iowa, 9, 92 Am. Dec. 405.
[4] These observations apply to the other divisions of the answer which were stricken, save that one division of the answer pleading justification was allowed to stand, so that, even if there be error in striking out one of the pleas of justification, it was without prejudice. It is suggested, but not argued, that the verdict has no support in the testimony. A casual reading of the record indicates the contrary.
2. The second count of defendant's counterclaim was for damages due to plaintiff's alleged use of a spurious map in this court, whereby he secured a reversal of the judgment in the case of Burroughs v. City of Cherokee, 134 Iowa, 439, 109 N. W. 876, where, as if the true plat had been used, no such result would have followed. A reading of the record clearly shows that there was not sufficient testimony upon which to submit this claim. We shall not set out the evidence upon which we arrive at this conclusion. It is enough to say that defendant failed to show that the so-called spurious plat had controlling influence upon the decision rendered by this court. The opinion filed in the case which was introduced in evidence upon the trial of this action clearly shows that this court had a true copy of the correct plat before it, and based its decision in part at least upon that plat. The opinion shows that, even had the alleged spurious plat been eliminated, the result would have been the same.
3. The trial court submitted the following interrogatories to the jury, which were answered in the manner indicated:
“Int. 1. Do you allow the plaintiff anything on the first count of his petition, wherein he seeks to recover damages for the publication of the article complained of in the Semi-Weekly Democrat? Ans. No.
Int. 2. If you answer the above interrogatory, ‘Yes,’ how much do you allow him? Ans. ______.
(3) Do you allow the plaintiff anything on the second count of his petition wherein he claims at the city council meeting the defendant charged him with the crime of forgery? Ans. Yes.
(4) If you answer the above interrogatory, ‘Yes,’ how much did you allow him? Ans. $900.
Int. 5. Do you find for the defendant Burroughs, on his counterclaim, wherein he says that the plaintiff, Mulvaney, charged him with the crime of perjury at the meeting of the city council? Ans. ______.
Int. 6. If you answer the above interrogatory, ‘Yes,’ how much do you allow him? Ans. ______.”
[5] Complaint is made of the failure of the court to require answers to interrogatories 2, 5, and 6. Manifestly, in view of the answer to No. 1, there was no necessity for an answer to No. 2. Unless there was error in failing to require an answer to No. 5, there was no error in not requiring answer to No. 6. Was there any error in the court's failure to require an answer to No. 5? We think not. The interrogatories were submitted on the court's own motion, and, when the verdict was returned, defendant's counsel made no request that the jury be required to answer this interrogatory. It is true that in the motion for a new trial filed some time after the return of the verdict defendant made the point that the trial court erred in not requiring answers to interrogatories 5 and 6. But we are constrained to hold that this was too late. Mack v. Leedle, 78 Iowa, 164, 42 N. W. 636;Mayo v. Halley, 124 Iowa, 675, 100 N. W. 529.
Moreover, the trial court gave the jury the following instructions: ...
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