Sclar v. Resnick
| Decision Date | 23 November 1921 |
| Docket Number | No. 34170.,34170. |
| Citation | 192 Iowa 669,185 N.W. 273 |
| Parties | SCLAR v. RESNICK. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; John E. Craig, Judge.
Action for slander. Plaintiff sought to recover damages for slanderous words claimed to have been uttered by the defendant. Defendant filed a counterclaim and sought damages for slanderous words claimed to have been spoken by plaintiff of and concerning defendant. The jury rendered a verdict in favor of the plaintiff, and the defendant appeals. Reversed and remanded.Jesse Schlarbaum and E. H. Pollard, both of Ft. Madison, for appellant.
E. C. Weber and J. M. C. Hamilton, both of Ft. Madison, for appellee.
Appellee's petition is in three counts, each count charging substantially the same slanderous words but alleging the utterance of the same on different occasions and in the presence of different parties. Appellee alleges that on the said occasions the appellant charged the appellee with being a whore and an immoral woman. The appellant by way of counterclaim charges that the appellee, on a certain occasion, charged the appellant with being a thief and with having bribed the justice of the peace in the trial of a certain lawsuit in which appellee was interested.
[1] I. The appellant requested the court to peremptorily instruct the jury to return a verdict for the appellant on his counterclaim for such an amount as the jury should find the appellant entitled to.
The theory of the appellant at this point is that two witnesses for the appellant testified that the appellee had stated in the presence of said witnesses that the appellant was a thief and, as the appellee did not specifically deny the making of said slanderous statement, that appellant was entitled to the instruction asked.
We do not think that under the record in the case the court erred in submitting the question to the jury.
The cross-examination of the appellant's witnesses on this question disclosed a situation that at least left it for the jury to determine the credibility of the witnesses in respect to the matter about which they had testified. The court very fully and carefully instructed the jury in respect to the appellant's counterclaim and the consideration which the jury should give the same. The appellee by reply had squarely put in issue all the allegations of the appellant's counterclaim. Even though the appellee did not, as a witness, specifically deny upon the trial the making of the alleged slanderous statements as testified to by the witnesses for the appellant, still, under the circumstances of the case, it was a question for the jury to determine whether appellant uttered them as alleged, and that question was properly submitted to the jury. There was no error at this point.
[2] II. Error is predicated upon the giving of instruction 23, wherein the court told the jury that the appellee would be liable on appellant's counterclaim, if at all, only for damages suffered by the appellant by reason of the statement made by the appellee in the presence of certain named witnesses and not for damages, if any, resulting to appellant by repetition of said statement by said witnesses or by other persons. Appellant complains that this instruction did not include the names of all of the witnesses who testified to the alleged slanderous words claimed to have been uttered by the appellee. This may be conceded, and still appellant's point is not well taken. In other instructions the court fully and carefully instructed the jury in regard to the utterances of the alleged slanderous words by the appellee as charged in appellant's counterclaim. The very clear and obvious purpose of the instruction herein complained of was to advise the jury that the appellee could not be liable for repetition of the alleged slanderous statements by persons who heard them or by others. There was no error in this instruction of which appellant can complain.
[3] III. Appellee testified that she was informed by one Hays that the appellant had made the alleged slanderous statements and over objection was permitted to testify regarding mental pain that she suffered because thereof. The words charged to have been uttered in the instant case were actionable per se. We have held that mental pain and suffering may be considered by the jury in determining the amount of damages in cases where the words spoken are actionable per se and where damages for such mental pain and suffering are sought by proper pleading. Davis v. Mohn, 145 Iowa, 417, 124 N. W. 206;Mills v. Flynn, 157 Iowa, 477, 137 N. W. 1082;Greenlee v. Coffman, 185 Iowa, 1092, 171 N. W. 580.
[4] It was not error to permit the testimony in respect to the information that the appellee received regarding the circulation of the alleged slanderous reports by the appellant or her mental suffering because thereof. The court correctly instructed the jury on the matter of repetition of the alleged slander by others and in regard to recovery for mental pain.
IV. Appellant in a separate count of his answer pleaded in mitigation of damages that appellee was a woman of general bad character and had a bad reputation for chastity in the city of Ft. Madison; that she had frequented an apartment which was and bore the reputation of being a house of ill fame; that she associated with men and women in said place, drinking therein, and was an inmate thereof and was so reputed to be; that she sat on men's laps with her arms around their necks, retired with divers men to rooms kept on said premises for immoral purposes, and was a prostitute; that her general reputation was that of having illicit relations with one Goldberg and with divers other men who frequently visited her house in the absence of her husband; that said facts had been learned by appellant previous to the alleged slanderous utterance, and that he believed the same to be true; that appellee in a certain case before a justice of the peace had testified under oath that one Novak had called her a whore in the presence of other people, and that appellee had caused some of her neighbors and acquaintances to be called as witnesses to testify that they had heard the statement by Novak. Upon the trial the appellant offered evidence regarding the matters alleged in this count of his answer.
The court instructed the jury that it could consider the mitigating circumstances pleaded by appellant in arriving at the amount of damages. The court then gave instruction 18, as follows:
“If it is not shown by a preponderance of the evidence that the alleged slanderous words were spoken without malice, then defendant's plea in mitigation would not have the effect of mitigating or reducing the damages, if any, plaintiff is entitled to recover.”
Complaint is particularly made of this instruction. In previous instructions the court told the jury in effect that, if the appellant uttered the words charged in appellee's petition, they were slanderous per se and that the law implied that such charge was maliciously made.
The effect of appellant's plea in mitigation in the instant case was to allege that any damage the appellee may have suffered by reason of the speaking of the words charged should be mitigated because of the existing bad character and reputation of the appellee in regard to the very matters claimed to have been charged by the words uttered. By instruction 18 the court in effect told the jury that it could not consider the previous bad reputation of the appellee in the community in regard to said matters in mitigation of damages unless the jury first found that the appellant had uttered the alleged slanderous words without malice on his part.
In Cain v. Osler, 168 Iowa, 59, 150 N. W. 17, Ann. Cas. 1918C, 1126, we had under consideration an instruction in regard to the mitigation of damages. We said:
“The effect of this instruction was to tell the jury that the mitigating circumstances should only be considered as bearing upon the allowance of exemplary damages. Although there is a conflict in the cases upon this proposition as applied to actions for defamation, we have announced the doctrine which counsel assume the instruction states. Brandt v. Story, 161 Iowa, 451;Morse v. Printing Co., 124 Iowa, 707.
This doctrine has peculiar, if not special, application to those mitigating circumstances tending to show want of malice on the part of the defendant. Where the mitigating circumstances relied upon relate to plaintiff's character, or to rumors current in the community, or other matters not related to defendant's motive, it may well be said that such mitigating circumstances should be considered with reference to the actual amount to be awarded the plaintiff. See Sedgwick on Damages (9th Ed.) § 446; Newell on Slander and Libel (3d Ed.) §§ 1044 and 1056, and cases cited.”
In Armstrong v. Pierson, 8 Iowa, 29, this court, speaking by Chief Justice Wright, said:
[5] The effect of instruction 18 is to tell the jury that unless the appellant had shown by a preponderance of the evidence that the alleged slanderous words were spoken without malice, then no matter whether his...
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Amick v. Montross
...with his plea of mitigation. The evidence in this respect, of which complaint is made, was properly admitted. See Sclar v. Resnick, 192 Iowa, 669, 185 N. W. 273. [7][8] The appellant introduced in evidence the testimony of a witness, who, after the proper foundation was laid, testified that......