Scholl v. Bradstreet Co.

• Decision Date: 24 May 1892
• Citation: 85 Iowa 551,52 N.W. 500
• Parties: SCHOLL v. BRADSTREET CO.
• Court: Iowa Supreme Court

85 Iowa 551

52 N.W. 500

SCHOLL

v.BRADSTREET CO.

Supreme Court of Iowa.

May 24, 1892.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Action to recover damages for an alleged libel. There was a verdict and judgment for the defendant. Plaintiff appeals.J. T. Illick, for appellant.

S. L. Glasgow, for appellee.

ROTHROCK, J.

1. It appears from the record that from the year 1874 to the year 1878 the plaintiff and A. Scholl were in partnership, and carried on a hardware store and sold agricultural implements at Carthage, in the state of Illinois, under the partnership name of Scholl Bros. In 1878 A. Scholl withdrew from the business, but it was continued and carried on by the plaintiff in the said partnership name of Scholl Bros. The defendant is an incorporated mercantile agency engaged in the business of collecting information touching the business character and credit and pecuniary responsibility of merchants, traders, and others engaged in commercial pursuits, and imparting such information to its subscribers, who are largely composed of wholesale merchants and dealers. One method of imparting such information to the subscribers is by means of what is called a “sheet of changes and corrections,” published and sent to their subscribers by mail. On the 13th day of November, 1888, one of these sheets was issued and published at Burlington, in this state, which contained the following statement: “Illinois, Carthage. Scholl Bros. Hardware and implements. Attached $3,472.81.” This action is founded upon this publication, and the original petition alleged the publication of the said words, with the usual matter in the way of innuendo, and demanded damages in the sum of $5,000. There was a demurrer to the petition, upon the grounds: “(1) That the alleged publication was neither libelous nor defamatory nor actionable per se; (2) there are no allegations of malice in the petition; (3) there are no allegations of special damages in the petition.” The demurrer was sustained, and as we infer it was sustained on all the grounds above set forth. We infer this from the fact that the plaintiff amended his petition so as to aver that the publication was made with malice, and by averring and setting up that he sustained special damages in the sum of $12 by reason of the publication. This was an acquiescence in the ruling of the court that the publication was not libelous in itself, because if it were it would not be necessary to plead special damages.

2. It is contended by counsel for appellant that the publication is libelous per se. That question was settled by the demurrer. The plaintiff did not stand upon his original petition. He amended it to conform to the ruling of the court. By his amendment he waived any objection to the ruling; and as is said in Smith v. Railway Co., 30 Iowa, 247: “He cannot be permitted to submit his cause for trial and afterwards raise objections to rulings which he has assented to by conforming his pleadings thereto.” By amending his pleading after a demurrer thereto has been sustained, a party waives any objection which he may have to the ruling on the demurrer. Taylor v. Galland, 3 G. Greene, 17;Melhop v. Doane, 31 Iowa, 397;Philips v. Hosford, 35 Iowa, 593;Muscatine v. Packet Co., 47 Iowa, 350.

3. As the publication was not libelous in itself, as determined by the court below and acquiesced in by the plaintiff by amending his petition, the remaining questions in the case may be determined very briefly. It appears from the evidence that the plaintiff at all times continued the business in the name of Scholl Bros. He testified as a witness upon that subject as follows: “I have been running the business under the name of Scholl Bros., and have...