168 Iowa 59 | Iowa | 1914
Plaintiff alleges that tbe defendant used the following false, defamatory and slanderous words of and concerning him (plaintiff) in the presence of Mrs. Martin Larsen and Mine Schenbaugh, at the home of Martin Larsen in Pottawattamie County, Iowa, some time in the month of September, 1911: “He (plaintiff) is a damn thief; he has stolen my steer; he is a damn, drunken thief.” This is denied by defendant and, without averring whether tendered in mitigation or as a justification, he pleaded the following:
‘ ‘ That at and for some time prior to the alleged slander, he, defendant, was the owner of the red steer mentioned in the petition, and that plaintiff was, and had been for some
“That some time prior to the alleged slander the said steer disappeared from or was taken from the farm of defendant without his knowledge or consent, and a short time subsequent thereto the said steer was in the possession of the plaintiff, and by him was sold to one Ade Osier and by the latter sold to one Mart Larsen without defendant’s knowledge or consent.
“That shortly thereafter defendant discovered said steer in possession of said Larsen and claimed the same as his own. That Larsen at the time informed the defendant of his purchase of the steer from the said Cain, and the defendant informed Larsen that Cain had no ownership in the steer, but that it was the property of the defendant and that he thereupon made claim to the same.
‘ ‘ That the steer in question was in fact taken by said Cain and appropriated to his own use and sold by him as aforesaid. And the statements made by the defendant concerning his ownership of the same, and that the plaintiff had no ownership of the same, or right to dispose of the steer, were in fact true. And defendant at the time believed the same to be true, and they were made in good faith and without any malice upon the part of the defendant toward plaintiff. ’ ’
In addition thereto, he pleaded, in an amendment to his answer:
‘ ‘ That the statement he made to Mrs. Larsen was that the red steer was his property and that Alex Cain had no right to sell it and that if he, Cain, did sell the steer, it was the same as stealing. That such statement was made to Mrs. Larsen under the conditions and in the manner following, to wit: Defendant at the time had gone to the Larsen place to look at the steer to see if the same was his property, and found that it was branded with his brand as it had been put on a bunch of
“Defendant for further answer, and by way of justification of the charge of slander made in this action, alleges:
‘ ‘ That at the time stated in the petition when it is claimed that defendant slandered the plaintiff, he, defendant, said to and in the presence of Mrs. Mart Larsen, and of and concerning the plaintiff, that ‘if Alex Cain had sold the steer it was the same as stealing.’ That at that time he was speaking of the red steer mentioned in the petition; that said steer had prior to that time been sold by Alex Cain, the plaintiff, to one Ade Osier, and the latter had sold the same to Mart Larsen, and defendant had been so informed before such statement was made.
“That such statement was the only one of that kind or character that defendant made to Mrs. Mart Larsen or in her hearing, or in the hearing of any other person named in plaintiff’s amendment to his petition. And such statement was in fact true at the time he made it, and if a true or fair construction of the same is that he charges plaintiff with the theft of said steer then defendant alleges such charge to be. true. ’ ’
Upon plaintiff’s motion, the matters pleaded in this amendment were stricken, and of this, complaint is made.
The testimony offered by plaintiff tended to show that defendant said to Mrs. Larsen:
Another witness testified that defendant said:
“Jim Osier said Alex Cain stole the calf that Mr. Larsen had, and that he was going to have the calf if it cost him a $1,000.”
Defendant had another and entirely different version of the matter and also introduced testimony tending to show that Cain had possession of the steer in question, and sold it to A. F. Osier, who in turn sold it to Martin Larsen, from whom he (defendant) thereafter replevied it as his property. The replevin case was tried before a justice, the jury being unable to agree, and before another trial could be had, the steer died; but in the meantime, defendant, recognizing that Larsen had paid for the steer in good faith, refunded him the money he had paid.
A calf skin was presented at the trial which it is claimed was the hide taken from the dead animal, for the purpose of proving that the animal belonged to the defendant, the identification being a brand upon the hide.
On the issues joined and the testimony adduced, the case went to a jury with the result hitherto mentioned.
The matter stricken out in no manner affected plaintiff’s character. If, then, it amounted to anything, it was as a plea of an honest belief in the truth of the charge, or of circumstances which indicated defendant’s good faith in making the charge, or that he was without malice in so doing. Prewitt v. Wilson, supra; Morse v. Printing Co., 124 Iowa 707.
A plea in mitigation must, in its nature, be a confession and avoidance and not a pleading of some other matter and a justification thereof. Looking now to the pleading attacked, it will be observed that it does not admit the use of the slanderous words charged, nor does it allege that they were true,
“He is entitled to recover such sum as the evidence shows will fairly and reasonably compensate him for any damage
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
Under the circumstances developed on the trial, the larger part of the award must have been based on the theory that defendant should be punished for his wrongful act; or, in other words, the damages were largely exemplary and not compensatory in character. In a trial before a justice of the peace, a jury disagreed regarding the ownership of the animal, and there is nothing to indicate that defendant intentionally and knowingly made claim to an animal which he knew was not his own. Under the circumstances, it is clear that the verdict is too large, so much so indeed as to clearly indicate passion and prejudice on the part of the jury. We would not be doing our duty under the law to permit such a verdict to
‘ ‘ I have demonstrated fairly well to this jury that there has been some kind of a trick, I am not here to say who played the trick, but there was a trick played on you. (There was no evidence of any substitution of.hides.)
“Why, Great God, No! I like Alex Cain, I like him because when a man, even though he owns four hundred and forty acres of land calls 'him a thief, so that his family and his people and children knows it, has got the sand to come before twelve men and say to them, ‘I have committed no wrong.’ Why they knew it was false, they knew that he owned the steer, and they are both in the court to protect the name of the father, they, of all the people in the world know it is not true.
‘ ‘ I will admit that Alex Cain is a poor man. Alex Cain is a poor man. He had only two cows and his team and his children but he worked for three years and a half on that farm — ”
“Organ: ‘If your honor please, we object to this state
“The Court: ‘I suppose the financial condition of the plaintiff is not involved in this case.’ ”
“Genung: ‘Why, I think it is involved myself, the financial condition of the defendant is involved in this case, and the evidence shows that he was a tenant, and I have got a right I think to discuss the tenant’s condition as distinguished from that of the landlord.’ ”
‘ ‘ Organ: ‘ I take exception to that last remark. ’ ’ ’
“(No ruling.)”
‘ ‘ Genung: 1 Jim Osier was the landlord. He owned 440 acres of land. Alex Cain for three and a half years had been his tenant. The tenant owned but two cows and two calves. Jim Osier said that he went and bought the cattle that was branded. His own cattle mind you at home was not branded up to that time because he said I branded my own cattle with the brand on the other hip. Up to this time he had not been using the branding iron on his own cattle. But he branded them on the other side. Now the evidence shows that poor Alex Cain had four head of cattle, he had two cows and two calves. - That is all that he owned except a share interest in these cattle that had been bought in Omaha,—
“Organ: ‘-If your honor please, we object to that statement as being improper, not being supported by the testimony, and no testimony of that kind could possibly be admitted in the case, it is misconduct on the part of counsel to make a statement of that character to the jury. I would like to have a ruling on that.’ (No ruling.) ”
It is well known that while the wealth and social position of defendant in actions of this character may be shown, it is not proper to prove plaintiff’s poverty in aggravation of damages. Perrine v. Winter, 73 Iowa 645.
There was indeed no proof of plaintiff’s poverty, but this was injected into the ease in the argument of counsel,
For the errors pointed out, the judgment must be, and it is — Reversed.