Schaffhauser Bros. v. Hemmer
| Decision Date | 12 May 1911 |
| Citation | 131 N.W. 6,152 Iowa 200 |
| Parties | SCHAFFHAUSER BROTHERS, Appellees, v. ELIZABETH HEMMER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--HON. ROBERT BONSON, Judge.
ACTION at law to recover damages for alleged slanderous words spoken of the plaintiff's business. Judgment for plaintiffs, and defendant appeals.
Reversed.
Hurd Lenehan & Kiesel, for appellant.
Kenline & Roedell, for appellees.
The petition alleges that plaintiffs constitute a partnership and for a considerable period have been engaged in the business of conducting a hotel known as the St. George, in the city of Dubuque, Iowa and that in April, 1907, the defendant, in the presence and hearing of Rosina Ploeger and others, spoke of and concerning the plaintiffs and their business false and defamatory words as follows: That said hotel was used and conducted as a sporting house for bad lewd, and immoral people and purposes, and as a house of ill fame, intending to convey thereby, and the persons in whose presence and hearing the words were spoken so understood, that plaintiffs conducted and used said hotel as a house of assignation and ill fame, by reason of which defamation plaintiffs allege that they have been injured "in their reputation and in their said property in the depreciation of the value thereof and loss of business in the sum of $ 10,000." The defendant denies the alleged slander, and avers that at the time alleged in the petition the plaintiffs were and at all times since said date have been occupying, keeping, and maintaining said place known as the St. George Hotel as a public and common nuisance in open violation of law. Trial was had to a jury, and verdict returned for plaintiffs for $ 500. Defendant's motion for new trial was overruled, and from the judgment entered thereon she appeals.
The situation will be more readily apprehended by a brief reference to the circumstances leading up to this litigation. For several years plaintiffs occupied and used the building or place known as the St. George Hotel as a hotel or boarding house and liquor saloon. The liquors were kept and sold in the central or middle room of the building, from which doors opened into the office and the sitting rooms for men and women. Upon a lot immediately adjoining this property the defendant had her residence. On the other side of defendant's said residence property was another liquor saloon conducted by one Dunlavey. Both saloons were being kept and maintained in violation of law. In April, 1907, and about the time of the alleged speaking of the defamatory words, actions were instituted by one Thorne and possibly others which resulted in decrees against both plaintiffs and Dunlavey, enjoining them from maintaining said liquor nuisances except under certain specified regulations. Upon certiorari proceedings in this court begun by the defendant herein these decrees were held to be erroneous, in that they failed to provide for an absolute and complete injunction against the unlawful business. Hemmer v. Bonson, 139 Iowa 210, 117 N.W. 257; Hemmer v. Bonson, 139 Iowa 210, 117 N.W. 257. In January, 1908, and while said actions were still pending in this court, plaintiffs approached defendant, expressing a desire for the settlement of the litigation, and the parties had some talk concerning a purchase by plaintiffs of defendant's property, but no agreement was reached, and within a few days thereafter this action was brought. Plaintiff's evidence tends to show that on April 25, 1907, the saloon prosecution was the subject of some conversation between the defendant and Rosina Ploeger, who was living in defendant's house. Mrs. Ploeger says she told defendant of a rumor that Dunlavey had threatened that, if compelled to close his saloon, he would open a "nigger boarding house" at his place, and that defendant responded: "I would rather live alongside a nigger boarding place than a place like the Schaffhausers are keeping." She further says that in the same connection defendant said the Schaffhausers were running a chippy place--a high-toned sporting house. No other person was present at this conversation, but one Arnold, who is mentioned as the "prospective son-in-law" of Mrs. Ploeger, says he was in an adjoining room, and he corroborates in a general way the testimony of that witness. The defendant denies the conversation, and denies using the words or anything of like substance or effect. Of the questions raised for our consideration we shall refer to those only which appear essential to a disposition of the appeal.
Before the case was submitted, the plaintiffs entered a disclaimer, which at their request was embodied in the court's instructions to the jury as follows:
Among other instructions given to the jury were the following:
(15) You are instructed that the evidence shows without contradiction that a saloon existed in the St. George Hotel at the time the said words, if any, are alleged to have been spoken, and that said saloon at the time was being operated by the plaintiffs contrary to and in violation of law, and any words, malicious or otherwise, spoken of or concerning said unlawful business when the words spoken refer to such unlawful business or the persons engaged in such business, or to being engaged in such unlawful business, are not actionable, and no recovery therefor can be had. Against whom, if anybody, were the alleged slanderous words, if any,...
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