Yocum v. Husted

• Decision Date: 13 May 1918
• Docket Number: No. 31392.,31392.
• Citation: 167 N.W. 663,185 Iowa 119
• Parties: YOCUM v. HUSTED ET AL.
• Court: Iowa Supreme Court

185 Iowa 119

167 N.W. 663

YOCUM

v.HUSTED ET AL.

No. 31392.

Supreme Court of Iowa.

May 13, 1918.

Appeal from District Court, Clarke County; Thos. L. Maxwell, Judge.

Suit to recover damages because defendants engaged in a conspiracy to slander the plaintiff. The defendants are jointly impleaded for this alleged conspiracy, and it is further charged that each and all of them carried out the objects of the conspiracy and did slander the plaintiff. There were directed verdicts for each of the defendants, jointly and severally, and plaintiff appeals. Reversed and remanded.

Preston, C. J., and Evans, J., dissenting.

Mason & Dyer, of Des Moines, for appellant.

O. M. Slaymaker, of Osceola, for appellees.

SALINGER, J.

I. The petition was in three counts. We need consider the first one only, because all matter added in the second and third count to the allegations of the first has no support in the evidence. The first count charges that the defendants Boyd Husted, Earl Husted, and Gale Husted conspired together at the funeral of their father, who was the husband of the plaintiff, to publish the false accusation that plaintiff was guilty of the murder of her said husband by poison administered.

At the close of all the testimony, all three of the defendants moved jointly and severally that verdict be directed for them on the general ground that there was no competent evidence of conspiracy or of joint action to support a recovery on the petition. The court finally directed verdict for all of the defendants, and appellant complains.

[1] The record is out of the ordinary, in that most of it exhibits exclusions of testimony. Practically all received was this: Plaintiff was married to the father of the defendants on May 27, 1913. She lived with him until his death. All arrangements were made for having the funeral cortége depart, but the departure was held up for something like an hour. While in the carriage in the funeral procession with her daughter and the daughter's husband, the defendant Earl Husted, the latter said to plaintiff she never would have come out and married his father if she had not wanted to get his money. She answered, “Do you think as happy as your papa and I lived together that I would do anything to shorten his days?” and he replied, “It looks that way.” And after the death plaintiff and some of the sons called on the doctor who attended decedent in his last illness, bottles of medicine were brought, and the substance of the talk was a statement by Earl in connection with the death of his father that they suspected the poisoning of the father by plaintiff. But on the authority of Campbell v. Park, 128 Iowa, 181, 101 N. W. 861, 104 N. W. 799, we may consider what would be in the record had it not been wrongfully excluded. As was said in Ballinger v. Connable, 100 Iowa, at page 129, 69 N. W. at page 440:

“It is well to consider what the question propounded to the appellant, and the testimony which it was proposed he should give, tended to prove.”

[2] At this point appellee urges that there should be no reversal for exclusion unless there be a formal offer to show what answer is expected. The writer took that position in the dissent in Express Co. v. Bank, 177 Iowa, 478, 152 N. W. 625, but was in the minority. Beyond debate, it is easier to infer what would have been answered in the case before us than to infer it in the Express Co. Case. And within the rule of that case the form of questions here, in the light of the whole record, sufficiently indicates what plaintiff was attempting to prove. It may be added that proffert was frequently made and frequently rejected or excluded.

[3][4][5][6] Had some of the exclusions complained of not been made, it may reasonably be said that much would have been added to the weight of the testimony for the plaintiff. We should now know why proceeding with the funeral procession was delayed. Had it not been stricken out, the record would show that the undertaker Benson said, in the presence of Gale Husted and of others: “Mrs. Husted, you have already got more trouble than you could bear. I have still another to add to it. Your son accuses you of his father's death.” That plaintiff then inquiring what son it was, Benson replied, pointing to Gale, “That one there,” and said it was Gale. That Gale remained silent and did not deny he was making such accusation. Under the principle declared in Foster v. Trenary, 65 Iowa, at page 624, 22 N. W. 898, this made it at least a question for the jury whether Gale was making such accusation. Had it not been stricken out, it would be in the record that, after being told of the attitude of Gale, plaintiff went to an upstairs room where her daughter and defendant Earl Husted were; that in the presence of Earl she said to her daughter, “Do you know why they have held the funeral?” The daughter replying “Why?” plaintiff said, “The boys are suspicious of me being the cause of your father's death.” The daughter exclaimed, “Oh, Earl!” and fainted--and Earl seems to have remained silent except for the statement in the carriage made later and already set out. Had it been received, we would have an answer from plaintiff as to whether on the day of the funeral there was an accusation or charge made against her accusing her of being the cause of her husband's death, and who made it. We would have an answer from the undertaker on whether either of the defendants asked him as to the wisdom of calling up, or told him to call up, the coroner or county attorney, and whether he did call these officers up and at the request of the defendants, or one or more of them. The undertaker did testify he had conferences with some of the defendants in two places, but was not allowed to say whether as a result thereof he called up the county attorney and inquired whether under the circumstances he should proceed with the funeral; whether or not, from what he heard the defendants or some of them say, he believed it his duty not to inter the body until after the facts had been laid before the peace authorities. The county attorney was not allowed to say whether the undertaker called him up in reference to this subject and if he did what he said. Had his testimony been received, it is reasonable to infer he might have said Benson informed him that members of the Husted family were objecting to the interment of the body, that these members claimed the death of their father was caused by foul play, and that the undertaker wanted the advice of the county attorney on whether the body should be interred then or further developments be awaited.

[7] Had answers been permitted, there would have been such testimony as is permitted by cases like Arnold v. Lutz, 141 Iowa, 596, 120 N. W. 121;Barton v. Holmes, 16 Iowa, 252;Kidd v. Ward, 91 Iowa, 371, 59 N. W. 279;Wimer v. Allbaugh, 78 Iowa, 79, 42 N. W. 587, 16 Am. St. Rep. 422; and Prime v. Eastwood, 45 Iowa, 640--as to the understanding of words spoken, leaving it a question for the jury whether the words were used in a defamatory sense. Had reasonable latitude in receiving testimony been indulged in, there is every reason to believe it would have become a question for the jury whether what each of the defendants said, did, or omitted to do established that they were acting together in charging the plaintiff with having murdered her husband. It may be conceded that no one of the items excluded would make a case for a jury--or even that all the excluded matters would not make such a case without being added to what was received. But a litigant is not bound to make his case by one answer, and it is clear there was error in excluding many proper items of proof. This is so unless a conspiracy may not be shown by circumstantial evidence and reasonable inferences and deductions therefrom--which is not the law. See Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.

[8] We are of opinion that the exclusions which have been referred to were erroneous, and that the testimony received, plus what it is reasonable to believe would have been added had there not been such exclusions, required submitting the charge of conspiracy to the jury. This, of course, is a contingent holding; and whether on retrial this charge shall be submitted to the jury depends upon whether the answers erroneously rejected will be in substance what we have assumed they will be. This is necessarily the situation whenever there is a reversal for exclusion. We cannot reverse without infering that what was excluded is material. But it may always transpire that when answer is made nothing material is adduced.

[9] II. The trial court held that, though proof of conspiracy had failed, yet any individual defendant might be held liable if there was evidence that as an individual he did what the petition charged, and it was further of opinion there was evidence of such individual action against the defendants Earl Husted and Gale Husted. In some of the earlier cases this court took the view that where a joint tort is averred a joint tort must be shown, and if that fails no judgment of any kind should be rendered. See Barnes v. Ennenga, 53 Iowa, 497, 5 N. W. 597. This holding of the Barnes Case was, in effect, overruled in Boswell v. Gates, 56 Iowa, at page 144, 8 N. W. 809, in Lull v. Bank, 110 Iowa, 544, 81 N. W. 784, and in State v. McAninch, 172 Iowa, at page 105, 154 N. W. 399, Ann. Cas. 1918A, 559. The great weight of authority in the present day is against said ruling in the Barnes Case. Charges of joint action are now dealt with “on the simple theory that two equals two times one: That an accusation that A. and B. committed a murder is in logic equivalent to asserting that A. committed a murder and that B. did, and that therefore B. may not escape because A. proves innocent.” And see Rush v. Commonwealth (Ky.) 47 S. W. 585;State v. Wadsworth, 30 Conn. 50, 57; Griffin v. Mills, 39 N. J. Law, 587; State v. McClintock, 8 Iowa,...