OPINION
EVANS, C. J.
The
petition was in two counts. The first count charged the
speaking of the slanderous words at the public sale of
Wheatly, in the presence of Chalon Johnson and others. The
second count charged the speaking of the same slanderous
words on another occasion, in the presence of one Edwards. No
evidence was offered in support of the second count, and we
may therefore disregard it. The slanderous words charged in
the first count were:
"Plaintiff
had plugged the scales and cheated and defrauded him
(defendant) out of more than 2,000 pounds weight on one
carload of hogs."
The
petition alleged that the spoken words were false and
malicious, and were spoken by the defendant with intent to
injure plaintiff in his reputation and in his business. The
plaintiff introduced on the trial three witnesses, who
testified to the words alleged to have been spoken by the
defendant on the occasion specified in the petition. The
trial judge held, in effect, that the words spoken by the
defendant, as testified to by the plaintiff's witnesses,
could not be deemed as in any sense false or defamatory, and
it therefore directed a verdict for the defendant. This
presents the one question in the case. The circumstances
which led to the speaking of the words, and
which are essential to an understanding of their purport, may
be stated briefly.
The
plaintiff was a stockbuyer, living and taking deliveries at
the town of Stockport. About December 1, 1913, the defendant
sold to him 58 head of hogs. He delivered them at Stockport,
and they were weighed upon scales provided by the plaintiff.
The defendant professed to estimate the weight of his hogs at
an average of 225 pounds. The weights as obtained from these
scales showed an average of only 188 pounds. The defendant
expressed his disappointment to the plaintiff. The weighing,
however, had been done by a disinterested person, and the
weights were adhered to and settlement had upon that basis. A
few hours later, in the same day, a plug or block was
discovered in such scales, and was removed therefrom. This
fact is undisputed, being testified to by plaintiff's
main witness, M. L. Shellman, who was the owner of the
scales. This fact came to the knowledge of the defendant, and
it may well be presumed that it confirmed him in his belief
that he had not obtained correct weights. Shellman was
himself a stockbuyer at Stockport, and permitted the use of
his scales by the plaintiff. The scales were kept under lock,
and only Shellman and the plaintiff had keys thereto. In the
light of these circumstances, the following extracts from the
testimony of the plaintiff's witnesses will be readily
understood. The plaintiff himself testified as follows:
"At
the time of this conversation at the scales, after he was
apparently satisfied, he said 'I don't blame you, but
I am disappointed in the weight of my hogs as given by the
scales.' When I saw him after that and had the
conversation with him, I don't know as he said he blamed
me, but he said he was beat out of 2,400 pounds of
hogs."
M.
L. Shellman testified as follows:
"I
was in Stockport the day he took in the hogs. The Job
Wheatley sale was within a few days after Rhynas got the Adkisson hogs. I saw Mr. Adkisson at that sale.
When I came into the crowd where Adkisson and some other
fellows were talking, I heard Adkisson saying he was beat in
the weight of his hogs; as I remember it, some 30 or 40
pounds to the head. I told him those scales were mine, and I
wished he had come to me at the time; and I told him that I
had watched Mr. Rhynas pretty close and I had never seen Mr.
Rhynas do anything that I thought wasn't straight. Well,
he said he wasn't saying that Mr. Rhynas did, but he
still thought he was beat in the weight of those hogs.
I remember hearing him say something about the weight of them
in Ottumwa, and he made the remark, that, 'if they had
been weighed on all the scales this side of New York, he
would still think he was beat in the weight of them
hogs.' Q. Do you remember of him saying, in that
connection, 'that he ought not to have sold them to an
Ottumwa buyer,' or anything of that kind? A. Well, I
believe I did hear that, yes, sir. He said that where he made
the mistake was in selling them to an Ottumwa buyer--he ought
to have shipped the hogs himself. Q. What did he say, if
anything, about the scales having been plugged? A. Well, I
don't know as I remember just what he said, only that
they was. Well, I don't know just how that part of the
conversation came in, but it was mentioned there that there
was a plug in the scales. And I told him, yes, that I had
found it there myself. Q. Now let me ask you, to refresh your
recollection, did he say something like this on that subject,
'that if he had known the scales had been plugged, he
would have taken the hogs home, or had them weighed
over?' A. I don't know whether it was said just that
way or not. I know I told him the scales were mine, and if he
had come to me, that I could have told in a minute or two
whether the scales was right or not, as soon as I seen them
work, and that the hogs could have been weighed over; that if
Mr. Rhynas wanted to do what was right, he certainly would
never object to the hogs being weighed over, and I didn't
think he would have objected. Q. What did he
say to that? A. Well, he didn't know at the time that
there was anything of that kind."
Cross-Examination:
"My
conversation was with him at the Wheatley sale. That was some
days after the sale of the hogs. He was talking with
somebody, and I came up where they were. There was something
said about the hogs not weighing what he expected them to
weigh. I think he said he had heard that there had been found
a plug in the scales. He either asked me if I had found a
plug in them, or I told him so; I don't remember just how
that came up. I told him that Mr. Talbott and I had found a
plug in the scales that evening. Q. And didn't he say
that he thought that would account for the trouble? A. I
don't know whether that was mentioned or not. Q. Well, he
said, right in that conversation, didn't he, that he
didn't blame Jim Rhynas with it? A. He said he wasn't
saying that Jim Rhynas did it, but he was beat. Said he was
beat 30 or 40 pounds to the hog. I understood he meant the
scales did not weigh right. Q. You understood that he thought
the trouble was with the scales; that the scales beat him;
and if you told him if you had known about it, if he had
called you, you could have told him about the scales, you
could have balanced them yourself? A. Yes. There were no
other people weighing on those scales. Mr. Rhynas and myself
were all that were supposed to have a key to those scales.
People could get around the scales, but they could not weigh
on them. Oh, I suppose blocks could get into them, or boys
could put them in, I suppose. I did see a piece of wood in
them. Mr. Talbott took it out. I helped him. That was along
in the evening of the day the hogs were brought in, somewhere
from 3 to 4 o'clock, I should guess. It might have been a
little earlier, and it might have been later. I don't
remember that I told Adkisson about the plug or how we got it
out. I don't know what he might have said after I went
away. I think likely I went away and left him there with some other men. I think he said once in that
conversation that 'he wasn't saying that Jim Rhynas
put it there.' He put it this way, that he wasn't
saying Jim Rhynas put it there. What I understood when he
said he was beat 30 or 40 pounds to the hog was that the
scales didn't weigh right. He didn't say that Jim
Rhynas did it. He expressed that right there."
The
witness Stanley testified as follows:
"I
was at the Job Wheatley sale a few days after that. I did not
have any conversation there with Adkisson about the hogs,
myself, but I heard part of a conversation between him and
Mr. Shellman. I heard Mr. Adkisson say he considered he was
beat out of 2,400 pounds of hogs. I was passing and heard
them say something about hogs, and I asked Mr. Shellman what
hogs were worth. He told me, and he also said, 'Perhaps
Mr. Rhynas could buy them higher,' or something like
that. I told him I could sell them to Mr. Rhynas, and then
someone there said something about Adkisson having sold hogs
to Rhynas. Q. What was said there, at the time Adkisson was
present, as near as you can tell? If you can't give the
exact words, give the substance of it as near as you can. A.
Well, I don't know that I could tell just the exact
words, but I just heard Mr. Adkisson say 'that he
considered he was beat out of or defrauded of 2,400 pounds of
hogs.' Now who did it, or how it was done, I didn't
hear him say."
Cross-Examination:
"That
was all the conversation I heard. I passed on. There was no
explanations made that I heard. I don't know who he
referred to or what he referred to. I heard him say he was
beat out of 2,400 pounds of hogs,...