Dixon v. Stewart

33 Iowa 125 | Iowa | 1871

Day, Ch. J.

1. Evidence: corroboration: slander. I. The defendant details the occurrence of April 22d, as follows : “ I remember the circumstance of Mrs. Dixon calling at my store on the night of the 22d of April. I showed her some children’s shoes. I got a number ten pair of shoes of the kind she said would suit her, and went to clear the pegs out; we have a sideboard and no counter on the side; the shoes are kept on the right hand side of the store; I had received several ¡cases of shoes that afternoon ; these button shoes were one of those lots lying on the sideboard; Mrs. Dixon was standing by these shoes and admiring them very much, and said she would require to get a pair in a few days for a Sunday pair of shoes'. After I cleared the pegs out of the shoes selected, I handed them to her; she said she would pay for them on Monday or return them.” Of the same transaction the plaintiff states: “ I got the shoes Saturday evening before, I asked Stuart if he had any boy’s shoes; he said yes; he showed me a pair of button shoes; I said I did not want that kind now, if I did I would call again and look at his shoes; I looked over the button shoes; I told him that I did not want the button shoes; I told him that I would take a pair home.”

The defendant introduced as a witness K.. G. Gardner, and asked him the following question: “Do you know and remember the circumstance of Mrs. Dixon, the plaintiff, calling at the store of the defendant, in the city of Maquoketa, on the night of the 22d of April, for the purpose of purchasing a pair of shoes, and if she said any thing in reference thereto; if so, state what took place, and any thing she said in reference thereto ?

The plaintiff objected to this question, and the answer was not allowed. In this ruling the court erred. Both plaintiff and defendant had testified with reference to what took place at the time referred to. It was, therefore, clearly competent for the defendant to corroborate himself by the testimony of another witness present at the time, and to obtain his version of the occurrence.

2. Instruction: want oe explicitness. II. In objections to the instructions of the court, it is urged, first, that the court did not define the issue, but left the jury to draw their own conclusions « -ti _ , trrom the pleadings; second, that the instructions do not state the legal effect of the answer, if proven.

1. The first position is not sustained by the record. The court did specifically direct the attention ■ of the jury to what was claimed .in the petition, and how the claim was met in the answer.

2. The court instructed the jury that if the defendant accused the plaintiff of larceny, the law infers malice from the speaking of the words, and that the burden of proof was upon the defendant to disprove the same, and that it was for the jury to determine, under all the evidence, facts and circumstances of the case, whether or not the defendant had disproved the malice which the law infers. If, in the judgment of the defendant, this instruction was not sufficiently explicit, and did not fully develop his defense, he should have asked a specific instruction, embodying his views of the case. See Ault v. Sloan, 4 Iowa, 508; Miller v. Bryan, 3 id. 58. This case differs from Owen v. Owen, 22 id. 270, in which no instructions were given; and from State v. Brainard, 25 id. 572, which was a criminal prosecution for a high offense, in which the court failed to instruct the jury respecting the law applicable to the offense. Beyond the doctrine of those cases we do not feel disposed to go.

3. Slander: meaning oe words. III. The giving of the fourth instruction is assigned as error. It is as follows: “ The words spoken should be construed in the sense in which the hearers understood them. And, in order to ascertain the import or imputation of the words spoken, you are to look at the words themselves, the sense or meaning in which the hearers understood them, and any explanatory circumstances known to both parties, speaker and hearers, at the time of speaking. In this case, if you find that the words charged were spoken as and in the manner charged in the plaintiff’s petition, and that the plain and natural import of the words so spoken, under the circumstances in which they were spoken and known to both the speaker and hearers, were adapted to convey and did convey to those who heard them, the idea or understanding that the defendant accused the plaintiff of stealing a pair of shoes, then, in such case, said words imputed to the plaintiff the crime of larceny, and would be actionable of themselves.” Tbe first clause of tbis instruction states tbe rule too broadly against the defendant. Words are not to'be construed: in tbe sense, absolutely, in which tbe bearers understood them, but they are to be understood in the sense in wbicb, in tbe light of all explanatory circumstances known to speaker and bearer, they are calculated to impress tbe bearer’s mind, and will naturally be understood. But tbe clause was so clearly and fully qualified by what follows in tbe same instruction, in which tbe law is explicitly stated, in almost tbe exact- language of tbe prior decisions of tbis court, that from tbe entire instruction tbe jury can scarcely have failed to receive a correct impression as to the rule applicable to this branch of the case. See Truman v. Taylor, 4 Iowa, 424; Wilson v. Beighler, id. 427; DeMoss v. Haycock, 15 id. 149.

IY. Tbe defendant insists that tbe court erred in instructing tbe jury: “That damages in cases of tbe character of tbis kind are predicated upon tbe value of tbe thing injured, wbicb in this case is character.” He claims that damages are not alone predicated upon tbe value of tbe thing injured, but upon tbis value and tbe injury inflicted. He should have asked tbe court to make such modification, if be deemed it essential.

Y. Hpon bis cross-examination tbe attention of defendant was directed to a conversation bad with Shrigly and Truax, and defendant stated that he did not tell either of them that Mrs. Dixon bad stolen a pair of shoes, and be was going to have her arrested. In rebuttal tbe plaintiff introduced Shrigly and Truax, and asked what defendant stated in tbe conversation referred to. Tbe defendant objected that tbe evidence was not rebutting. The objection was overruled. Of tbis action be complains. Tbe attention -of defendant was called to tbis conversation, and tbe testimony of these witnesses was admissible for tbe purpose of impeaching him.

YI. Lastly, it is claimed that the verdict is unsupported by the evidence. Three witnesses state substantially that when defendant came to the door of plaintiff’s residence “ he asked her if he had not put up two pairs of shoes on Saturday evening previous; he said it was very strange about the shoes; one pair was missing; nobody else was in before'or after that evening, and the shoes were gone, and she must have taken them; ” and that her husband need not come to see about it, unless be called to settle for the shoes. The defendant is tbe only remaining witness who testifies as to the speaking of the words.

Under such circumstances we would scarcely be justified in setting aside the verdict, as not supported by the evidence.

For the error of the court in rejecting the testimony of Gardner, the judgment is

Reversed.