Vial v. Larson

• Court: United States State Supreme Court of Iowa
• Citation: 109 N.W. 1007,132 Iowa 208
• Parties: ABE VIAL v. LEWIS LARSON, Appellant
• Decision Date: 14 November 1906

109 N.W. 1007

132 Iowa 208

ABE VIAL v. LEWIS LARSON, Appellant

Supreme Court of Iowa, Des Moines

November 14, 1906

Appeal from Hancock District Court.-- HON. C. H. KELLEY, Judge.

Action to recover damages for slander. There were several counts in plaintiff's petition, but the issues as to all but two of them were withdrawn from the jury, and the damages allowed as to one of these were remitted by plaintiff. Defendant appeals from judgment rendered against him on the verdict in plaintiff's favor under the issues raised on the remaining count of the petition. Reversed.

Reversed.

John Hammill and J. J. Clark, for appellant.

Senneff & Bliss, for appellee.

OPINION

MCCLAIN, C. J.

The evidence tended to show that plaintiff is by trade a painter that defendant as a member of the school board of the independent school district of Britt, was asked by one Kleaveland, who was entering into a contract for the erection of a schoolhouse for the independent district, and who was about to sublet a contract for the painting, as to plaintiff's fitness for doing the work; and that, in response to this inquiry, defendant answered that he thought plaintiff was not the man the contractor wanted, and that he could not be relied upon, "as he might use stuff there that was not called for in the specifications." The verdict, so far as it was made the basis of the judgment, was for actual and exemplary damages in the use of such language by defendant to Kleaveland with reference to plaintiff, his fitness as a workman in his trade.

The court instructed the jury that the communication was privileged, and if, at the time defendant talked with Kleaveland, "he had reasonable grounds to believe and did honestly believe that what he said about plaintiff was true; or if such statements were, in fact, true, then the plaintiff is not entitled to recover any damages in this action, and if you so find from the evidence introduced upon the trial, your verdict should be for the defendant. The burden is upon the defendant to so prove." The giving of this instruction is assigned as error, and we think the assignment of error is well founded. Malice is presumed from the making by one person of derogatory statements with reference to another in regard to his competency or fitness for his trade or profession, and such derogatory language is slanderous per se. Newell, Slander & Libel (2d Ed.) 182, 393. But, if the communication is privileged, the imputation of malice is negatived, and the injured party can recover damages only on proof that the statements are malicious. The burden of proving this fact is, under such circumstances, upon the plaintiff. Nichols v. Eaton, 110 Iowa 509, 81 N.W 792; Morse v. Times-Republican Printing Co., 124 Iowa 707, 100 N.W. 867; Marks v. Baker, 28 Minn. 162 (9 N.W. 678); Howard v. Dickie, 120 Mich. 238 (79 N.W. 191); Missouri Pacific R. R. Co. v. Richmond, 73 Tex. 568 (11 S.W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794); Bradley v. Heath, 29 Mass. 163, 12 Pick. 163 (22 Am. Dec. 418); Lauder v. Jones, 13 N.D. 525 (101 N.W. 907); Hebner v. Great Northern R. Co., 78 Minn. 289 (80 N.W. 1128, 79 Am. St. Rep. 387); Chaffin v. Lynch, 84 Va. 884 (6 S.E. 474); Newell, Slander & Libel (2d Ed.) 324, 392. Proof of untruthfulness of the statements would not show that they were maliciously made. Howard v. Dickie, ...