Robinson v. Home Fire & Marine Ins. Co.

• Decision Date: 17 July 1953
• Docket Number: No. 48284,48284
• Citation: 59 N.W.2d 776,244 Iowa 1084
• Parties: BOBINSON v. HOME FIRE & MARINE INS. CO.
• Court: Iowa Supreme Court

Page 776

59 N.W.2d 776

244 Iowa 1084

BOBINSON v. HOME FIRE & MARINE INS. CO.

No. 48284.

Supreme Court of Iowa.

July 17, 1953.

W. Lawrence Oliver, Des Moines, for appellant.

Herrick & Langdon, Des Moines, for appellee.

GARFIELD, Justice.

This is a law action for damages for two separate defamatory statements. Both alleged statements followed a fire in October, 1949, which damaged plaintiff's home, insured by defendant company. Defendant claimed plaintiff set the house on fire. Plaintiff's husband died from burns received in the fire. Plaintiff sued defendant on the insurance policies and recovered the full amount of insurance notwithstanding the defense she set the fire. Clifton Davis had lived in plaintiff's home until about a year before the fire.

Division III of plaintiff's amended petition alleges this slanderous statement was made in the presence of Clifton Davis and others unknown to plaintiff by the deputy fire marshal of the state of Arkansas, then acting as an agent of defendant company: 'You know Gracie Lee Robinson set the fire that burned up her husband and burned the house. Why don't you tell us about it? We have the goods on her and we know you know it, so you might as well tell us how she set the fire.'

Division IV of plaintiff's amended petition alleges that about March 20, 1950, an attorney for defendant, when interviewing Clifton Davis as a prospective witness in the action then pending on the insurance policies, said before Davis and others unknown to plaintiff: 'Clifton, you are still going to testify Gracie Lee Robinson set the fire that damaged the house and burned up her husband aren't you? You know Gracie Lee Robinson did set the fire and burned up her husband and I am sure you want to tell the jury about it.'

Davis, principal witness for plaintiff upon the trial, testified the deputy fire marshal and the attorney each made about the same statement the petition alleges. The testimony as to what the deputy said was excluded on the ground there was no competent evidence he was defendant's agent. This ruling presents the first matter for our consideration. A verdict was directed against plaintiff on Division III of her petition on the same ground and another ground we need not consider.

A verdict was directed against plaintiff on Division IV of her petition principally on the ground the alleged statement by defendant's attorney to a prospective witness in the action on the insurance policies was at least qualifiedly privileged and such privilege was not exceeded since the statement was not made to persons other than Davis and there was no evidence of malice.

The pleadings in this case were before us upon a prior appeal, 242 Iowa 1120, 49 N.W.2d 521, where we held Division IV of the amended petition stated a cause of action in view of the allegations of express malice and publication of the alleged statement in the presence of others than Davis. Division III of the amended petition with which (together with Division IV) we are now concerned was not involved in the prior appeal. Division V is not now before us since we affirmed its dismissal upon the prior appeal.

I. The only evidence the deputy fire marshal of Arkansas was an agent of defendant, as Division III alleges, is Davis' testimony that when the officer came to see him in an Arkansas town he said he represented the Home Fire & Marine Insurance Company. The trial court correctly ruled this was not competent proof of the alleged agency. It is elementary that in the absence of other evidence of agency the extrajudicial statements of an alleged agent to a third person are not admissible, over objection, against the alleged principal to prove agency. See 3 C.J.S., Agency, § 322c(1), page 276; 2 Am.Jur., Agency, section 445; Friedman v. City of Forest City, 239 Iowa 112, 126, 30 N.W.2d 752, 759; Folsom v. Grove, 233 Iowa 1140, 1143, 11 N.W.2d 368, 369; Klassie v. Holt, 233 Iowa 826, 830, 10 N.W.2d 540, 542, and citations. See also Schroeder v. Cedar Rapids Lodge No. 304, 242 Iowa 1297, 1301, 49 N.W.2d 880, 882.

Of course plaintiff had the burden to prove her allegation the deputy fire marshal was acting as defendant's agent. Dugan v. Midwest Cap Co., 213 Iowa 751, 756, 239 N.W. 697; Ferguson v. Pilling, 231 Iowa 530, 533, 1 N.W.2d 662, 664; 3 C.J.S., Agency, § 315b; 2 Am.Jur., Agency, section 442. Since there was no competent evidence the deputy fire marshal was authorized to act for defendant the verdict for defendant on Division III was properly directed on such ground.

II. Error is assigned in the court's refusal to permit plaintiff to amend Division IV of her petition to conform to the proof during the trial by alleging defendant's attorney said out of court in the presence of Clifton Davis and others unknown to plaintiff, while the case over the insurance was on trial: 'Clifton why didn't you come up to the Bankers Trust Building as I told you? You could have put your hands on $150 by agreeing to testify that Gracie Lee Robinson set the fire that damaged the house and burned up her husband.'

Before the above amendment was tendered, plaintiff offered to prove by the witness Davis that Mr. Bannister and Mr. Ahlers, defendant's attorneys in the action on the insurance policies, came to see him in March, 1950, when he was at work at the Firestone plant in Des Moines, a foreman called the witness outside the plant where Mr. Ahlers 'made some statements about this fire, if I knew how it was set, and I said 'No,' but he said he knowed Grace Lee Robinson set the fire that burned up her husband and her house. He said we have the goods on her because they had got the statement from down in Arkansas that I had stated.' Also that Ahlers told him to come to the tenth floor of the Bankers Trust Building but Davis did not go. Objections to this offer of proof on the ground the statement was privileged were overruled and the witness testified in the jury's presence in accordance with the offer.

Plaintiff also offered to prove by Davis that after he was subpoenaed to attend the trial of the insurance action he saw Mr. Ahlers in a hall of the courthouse before court convened and the attorney made substantially the statement contained in the amendment later tendered to Division IV of the petition. This offered testimony was objected to on the ground the claimed statement was privileged and also was outside the pleaded issues. Plaintiff then tendered the amendment to Division IV. The amendment was not allowed on the ground it came too late. While we find no definite ruling on the objection to this offer of testimony, the offer was not received.

Rule 88, Rules of Civil Procedure, 58 I.C.A., provides in part, 'The court, in furtherance of justice, may allow later amendments, including those to conform to the proof and which do not substantially change the claim or defense.' This rule has been given substantially the same interpretation previously accorded the statutory provision it supersedes. Terpstra v. Schinkel, 235 Iowa 547, 552, 553, 17 N.W.2d 106, 109; Brown v. Schmitz, 237 Iowa 418, 423, 22 N.W.2d 340, 343.

The trial court has a broad discretion in the matter of permitting an amendment during the trial. See citations last above, also Kuiken v. Garrett, 243 Iowa 785, 803, 51 N.W.2d 149, 160; Elson v. Nickles, 240 Iowa 292, 294, 36 N.W.2d 343, 344; Webber v. E. K. Larimer Hdwe. Co., 234 Iowa 1381, 1389, 15 N.W.2d 286, 290. While liberality in permitting amendments has usually been the rule we are not prepared to hold the denial of this amendment was an abuse of discretion.

The action was pending a year and a half before the amendment was tendered. During that time it was appaled to us on the pleadings and went back to the district court for trial. No excuse was offered for the long delay in seeking to file the amendment.

Further, it does not appear plaintiff was prejudiced by rejection of the amendment. We do not understand it was offered as the statement of a separate or additional cause of action. It asked no additional damages. It was not a separate count but an amendment only to Division IV of the petition. Had it been intended as a distinct cause of action it should have been stated in a separate count. 33 Am.Jur., Libel and Slander, section 234. See also Jean v. Hennessy, 69 Iowa 373, 375, 28 N.W. 645; Bond v. Lotz, 214 Iowa 683, 686, 243 N.W. 586.

Since plaintiff did not claim the statement by Mr. Ahlers at the courthouse constituted a distinct cause of action, evidence concerning it was admissible, if at all, only on the issue of actual malice in making the earlier statement at the Firestone plant declared upon in Division IV. Admissibility of such evidence for the purpose indicated was not dependent upon reference in plaintiff's petition to the later conversation at the courthouse. It was admissible, if at all, under the allegations of actual malice. See Sclar v. Resnick, 192 Iowa 669, 676, 687, 185 N.W. 273; Ladwig v. Heyer, 136 Iowa 196, 199, 113 N.W. 767; Bailey v. Bailey, 94 Iowa 598, 600, 63 N.W. 341; Jean v. Hennessy, supra, 69 Iowa 373, 375, 28 N.W. 645; Prime v. Eastwood, 45 Iowa 640, 642; Hinkle v. Davenport, 38 Iowa 355, 361; Annotations 12 A.L.R. 1026, 1029, 86 A.L.R. 1297; 53 C.J.S., Libel and Slander, §§ 187, 214a, pages 296, 322; 33 Am.Jur., Libel and Slander, section 269. See also Rhynas v. Adkisson, 178 Iowa 287, 296, 297, 159 N.W. 877; Bond v. Lotz, supra, 214 Iowa 683, 686, 243 N.W. 586.

Halley v. Gregg, 74 Iowa 563, 564, 38 N.W. 416 holds it was not error to strike allegations the slanderous statement declared upon was repeated. The opinion says, 'It is competent, in actions for slander, to prove a repetition of the slanderous charges, for the purpose of showing malice. (Citations.) But it is wholly unnecessary to plead the repetition of the words. They are merely evidence upon the question of malice.' See also in support of our conclusion plaintiff was not prejudiced by denial of leave to...