Rhynas v. Adkisson

• Decision Date: 15 November 1916
• Docket Number: No. 30863.,30863.
• Citation: 178 Iowa 287,159 N.W. 877
• Parties: RHYNAS v. ADKISSON.
• Court: Iowa Supreme Court

178 Iowa 287

159 N.W. 877

RHYNAS

v.ADKISSON.

No. 30863.

Supreme Court of Iowa.

Nov. 15, 1916.

Appeal from District Court, Van Buren County; C. W. Vermillion, Judge.

Action for slander. At the close of the plaintiff's evidence there was a directed verdict for the defendant and judgment entered thereon. Plaintiff has appealed. Affirmed.Walker & McBeth, of Keosauqua, and J. C. Mitchell, of Ottumwa, for appellant.

Work & Irish, of Keosauqua, for appellee.

EVANS, C. J.

The petition was in two counts. The first count charged the speaking of the slanderous words at the public sale of Wheatley 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 that:

“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 stock buyer 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 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 never object to the hogs being weighed over, and I don'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 the 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 in this way: ‘That he wasn't saying that 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 some one 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 that he was beat out of, or defrauded of, 2,400 pounds of hogs.’ Now who did...