Shultz v. Shultz

• Decision Date: 26 October 1937
• Docket Number: 43992.
• Citation: 275 N.W. 562,224 Iowa 205
• Parties: SHULTZ v. SHULTZ.
• Court: Iowa Supreme Court

275 N.W. 562

224 Iowa 205

SHULTZ v. SHULTZ.

No. 43992.

Supreme Court of Iowa.

October 26, 1937

Appeal from District Court, Lee County; J. R. Leary, Judge.

Action at law for slander. There was a trial to a jury resulting in a verdict for the plaintiff. The defendant filed a motion for new trial, which was overruled. From the court's ruling on this motion in which it refused to grant a new trial, the defendant appeals.

Affirmed.

Frank W. Oertel, of Keokuk, for appellant.

E. W McManus, of Keokuk, for appellee.

DONEGAN, Justice.

This is an action for slander brought by Golda Shultz against Ida Shultz, the mother of the plaintiff's husband. The petition contained five counts, each count stating a separate slanderous statement of and concerning the plaintiff, alleged to have been made by the defendant maliciously, with the intention of injuring plaintiff in her good name, fame, and credit, and bringing her into public scandal and disgrace. The alleged slanderous statements were as follows: In count 1 defendant is alleged to have said to her son, in the presence of one Estella Murphy, " Go ahead and live with that whore" ; in count 2 defendant is alleged to have said in the presence of Nellie Calfee, " She is nothing but a whore, she runs around with other men and had a bad disease" ; in count 3 defendant is alleged to have said in the presence of H. C. Bear, " She is nothing but dirty trash, I don't see why Maxie stays with her, she isn't sane and she will kill Maxie with an axe" ; in count 4 defendant is alleged to have said, in the presence of Sylvia Kennedy, " She is a bitch and a disgrace to the Shultz family and I can't see why Max lives with her, she will kill him" ; and in count 5 defendant is alleged to have said to her son, Max Shultz, the husband of plaintiff, " She is a whore and her mother and her people were whores and she has gotten rid of babies." In each count it is alleged that the statement made by defendant was false and untrue, was made maliciously with the intent of imputing unchastity to the plaintiff, and was so understood by the person hearing the same. Each count alleged actual damages in the sum of $5,000 and exemplary damages in the sum of $5,000, and the prayer asked for total damages in the sum of $50,000.

In an amendment to the petition it was stated, in each count thereof, that the publication of the slanderous words subjected plaintiff to public scorn and ignominy and has caused her and will cause her great mental pain and suffering. The answer denied generally all the allegations of the petition and further denied that the alleged statements charged in counts 3 and 4 were slanderous per se, and stated that extrinsic facts were not alleged making them so. Upon the trial of the case the defendant moved for a directed verdict at the close of plaintiff's evidence, and again at the close of all the evidence, and such motions were overruled. The court removed from the consideration of the jury the allegations contained in count 4 of the petition and submitted the case to the jury on the remaining counts. The jury returned a verdict of $3,000 and defendant filed a motion for a new trial. Such motion for new trial was overruled, judgment entered for the plaintiff, and the defendant appealed.

The notice of appeal stated that, " the Defendant appeals from a ruling and order of the District Court of Lee County, Iowa at Keokuk entered of record on the 13th day of October, 1936 overruling her motion for a new trial in this cause." This notice restricted the appeal to such matters as were raised by the motion for a new trial. Yockey v. Woodbury County, 130 Iowa 412, 106 N.W. 950; Liddle v. Salter, 180 Iowa 840, 163 N.W. 447; Incorporated Town of Conway v. Conway, 190 Iowa 563, 180 N.W. 677; Rule v. Rule, 204 Iowa 1122, 216 N.W. 629; Chicago, B. & Q. R. Co. v. Board of Supervisors et al., 206 Iowa 488, 221 N.W. 223; Iowa National Bank v. Raffensperger, 208 Iowa 1133, 224 N.W. 505.

Appellant sets out twelve alleged errors relied upon for reversal. An examination of these alleged errors shows that Nos. 1, 4, and 7 thereof were not set out or even inferentially called to the trial court's attention by the motion for a new trial, and, therefore, they cannot be considered by us upon this appeal. Of the remaining alleged errors, Nos. 2, 3, 5, 6, and 8 have reference to the slanderous statements alleged in count 3 of the petition and amendment thereto, to the rulings of the court upon evidence in support thereof, and to rulings of the court on defendant's motions to remove this count from the consideration of the jury and to direct a verdict for the defendant thereon. It is somewhat doubtful whether any of the questions presented by these alleged errors were sufficiently alleged in the motion for a new trial to call the trial court's attention to them, so that they may now be considered by this court on appeal. However, we have examined all of the alleged errors here referred to and we are satisfied that as to none of them had the appellant sustained her contention.

The rulings of which appellant complaints in her second, third and fifth allegations of error have been referred to in both appellant's and appellee's arguments on each of the questions therein raised, and are so related to each other that we will consider them together. The second alleged error is: " That the court erred in reversing his ruling and never making the same clear to the jury or the record to defendant's objections and motion to strike on the question and answer ‘ She told me her daughter-in-law was crazy’ (Abs. p. 18, 1. 10) and ‘ what she was afraid of Golda would take her little Max and split his head open’ (Abs. p. 16, 1. 11). Objections by counsel (Abs. p. 18, 1. 12, to 1. 16). The court (Abs. p. 18, 1. 17). Statement of counsel (Abs. p. 18, 1. 19), because the same was incompetent, irrelevant and immaterial and because the same failed to prove slander per se, or otherwise and admits a fatal variance between the allegations of the petition and the proof." We confess to some difficulty in understanding just what is meant by this alleged error. An examination of the portions of the record referred to, however, shows that, after the witness Bear had testified that the defendant had told him that the plaintiff was insane and crazy and that she was afraid the plaintiff would take her little Max and split his head open, the attorney for the defendant objected to the testimony as not slanderous per se or otherwise and moved to strike it. On the request of plaintiff's attorney the court deferred ruling until the entire statement alleged to have been made by defendant to this witness was introduced. Plaintiff's attorney then asked the witness whether he had heard the defendant say that the plaintiff was nothing but dirty trash, and an objection of the defendant to this testimony was sustained. Plaintiff's attorney then called the court's attention to the fact that in his petition he had alleged that this identical language had been spoken to the witness. Whereupon the court overruled the objection and the witness answered. Thereupon the defendant's attorney renewed his motion to strike and his objections made to the former question, and the court held that the evidence...