Royston v. Vander Linden

• Decision Date: 11 March 1924
• Docket Number: 35878
• Citation: 197 N.W. 435,197 Iowa 536
• Parties: WILLIAM M. ROYSTON, Appellant, v. JOHN H. VANDER LINDEN, Appellee
• Court: Iowa Supreme Court

197 N.W. 435

197 Iowa 536

WILLIAM M. ROYSTON, Appellant, v. JOHN H. VANDER LINDEN, Appellee

No. 35878

Supreme Court of Iowa, Des Moines

March 11, 1924

Appeal from Des Moines Municipal Court.--T. L. SELLERS, Judge.

ACTION for slander. The court directed a verdict for the defendant and the plaintiff appeals.

Affirmed.

Theodore Mantz and Milton Weber, for appellant.

Guy Miller, for appellee.

FAVILLE J. ARTHUR, C. J., EVANS and PRESTON, JJ., concur.

OPINION

FAVILLE, J.

Appellant seeks to recover damages from appellee for an alleged slander, it being appellant's contention that appellee accused appellant of stealing an automobile tire belonging to appellee.

It is alleged in the petition that the slanderous words were uttered in the presence and hearing of two parties. Appellant as a witness testified that appellee uttered the alleged slanderous words in the presence of one Pitman, and that he also uttered said slanderous words in the presence of appellant and Pitman at the same time, in a telephone conversation between appellee and one Jeffrey.

In order for appellant to recover, it was necessary for him not only to prove the utterance of the defamatory words by appellee, but also that the same were published. It is elementary that one cannot be liable for slander by the use of defamatory language which is heard only by the party to whom the words refer. There must be also a publication of the alleged defamatory words to some person other than the one who claims to be slandered. Without proof of such publication to some third party, no recovery can be had for the utterance of defamatory and slanderous words.

Appellant in this action testified, not only that the slanderous words were uttered, but also that they were heard by the two parties referred to, and that, therefore, there was a publication of said words. One of the parties referred to by appellant was present in the office where the conversation in question took place. It appearing from the evidence that said party was within the presence and hearing of appellant, a presumption might arise in appellant's favor that said party heard said slanderous words, and that, therefore, there was publication thereof. In this case, however, appellant produced both of the parties who it is claimed heard the slanderous words, one of whom was present in the office where it is claimed the words were spoken, and the other of whom was not present, but with whom it is claimed that appellee had a conversation over the telephone from the office at said time. Each of said witnesses so produced by appellant testified that they did not hear appellee utter any slanderous or defamatory words of and concerning appellant as claimed by him. Therefore, by the testimony of his own witnesses, appellant rebutted any presumption that arose from his own testimony that the party who...