139 Iowa 742 | Iowa | 1908
A. A. Dorn, one of the members of plaintiff firm, was a competitor of defendant in the general merchandise business in the town of Neola, Pottawattamie County. He was also engaged with J. E. McGrinty in the business of buying live stock. In the town of Neola there was published a newspaper known as the “Reporter,” and defendant had a half page of this newspaper reserved for advertising purposes. Defendant composed and had
Flour. Flour we bought two cars of Marshall’s Best Flour four months ago and sold them and bought two more and have about sold them. We buy flour to sell, not to carry through four of the hottest months in the year, May, June, July and August. I would advise a close inspection of flour carried through these hot months. 1 would sell it for anything I could get and invest it in hogs- — something that I could sell. The hog business is better than the flour business because hogs will always sell, at a good big profit. We are thinking of going into the hog business ourselves and see what effect it will have on the nice little pool that exists since our friend Mr. Osborn-left this market. We have noticed that Neola has changed from' one of the best hog markets in the whole country to one of the most bummy. My advice to the merchants is to imitate 'Underwood and " place a buyer here to pay what the stuff is worth. The best grade of hogs sold for 5.80 in So. Omaha Oct. 13 with the Neola market from 4.50 to 4.80. How long will the merchants of Neola and the farmers stand that kind of a margin?
This action is bottomed upon that publication, which it is alleged referred to plaintiffs, was false, scandalous, and malicious, and resulted in damage to plaintiffs and to their business. Defendant admitted the publication of the article, but denied that it was false and scandalous or malicious. He also averred that the charges therein contained were practically true, and that it was published in good faith, and for justifiable ends. He also pleaded that before publishing the article he made such inquiries as led him to believe that the charges therein were true: and that he published the same in good faith, honestly believing the same to he true and for justifiable ends. In another division of the answer he denied that the article referred to plaintiffs, and further pleaded that he did not know of the existence of plaintiff firm at the time he made the pub
1. Slander andlibel: malice: evidence. Nor the purpose of showing actual, as distinguished from legal, malice upon the part of the defendant, plaintiffs undertook to show the market price of hogs at South Omaha, at Neola, and at the towns of Underwood and Minden, which towns were but a short distance from Neola, on the 13th day of October, 1903. In order to meet this showing, defendant was permitted, over plaintiff’s objections, to show what the market was at Neola on that day, and what he was told by others regarding the prices being paid at that time. For the purpose of rebutting the inference of legal malice, we think this testimony was admissible. It was not admissible in justification, for the truth was not pleaded as a defense; nor was it admissible in mitigation of actual damages for three reasons: (1) Because it was not pleaded in mitigation; (2) the article did not purport on its face to be based upon anything save defendant’s own knowledge; and (3) even if pleaded in justification, the testimony could not, under the authorities, be received in mitigation. But as testimony to the same point was offered by plaintiffs to establish actual malice, defendant was entitled to rebut the same by showing the actual market prices and his information . regarding the same at the time he made the publication.
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Now if any or all of these matters are shown by the evidence, the defendant would be entitled to have said matters so shown considered in mitigation of any damages that you might award against him, and also as bearing upon the question of whether in publishing said article or not he acted with express or actual malice, the burden resting with the defendant to show said mitigating circumstances by the greater weight of the evidence. You will understand that the above matters, if shown, would not be a complete defense to- the publication of said article, if same was published concerning the plaintiff firm, but are only to be regarded in mitigation, of damages and as bearing upon the question whether the defendant in making said publication acted with express malice or not. If it appears from the evidence that, at the time the defendant published said article, he did not know of the existence of Dorn & McGinty, as a copartnership, said matter should be considered in mitigation of damages as above explained.
We have already indicated our views with reference to the testimony admitted to sustain the plea interposed by defendant. Such testimony was admissible only to negative the thought of express or actual malice. It should not be considered in mitigation of the actual damages sustained, for defendant professed to speak of his own knowledge, and not from information derived of others. The trial court in its instructions told the jury that the
Appellee says, however, that the jury did not follow the instruction, in that it awarded compensatory damages in the sum of $1. It will hardly do to say that a verdict for $1 is compensatory; but, if it be, this does not cure the error in the instruction. The award may have been made in order that there might be no question as to who should pay the costs without any reference to compen
For the errors pointed out, the judgment must be, and it is, reversed.
Supplemental Opinion.
In a petition for rehearing the rule announced in the first division of the opinion with reference to the admissibility of defendant’s testimony as to his feelings toward the plaintiff is strongly challenged." It is argued that the Barr-Hack case, 46 Iowa, 308, does not decide the question; and in the petition, for the first time during the progress of the case, we are asked to overrule that case, if it cannot be distinguished.
As the element of express malice is involved in every action of libel or slander, and may be found from the nature of the publication itself or from the circumstances surrounding the publication, it is clear that the Barr case is directly in point upon the proposition that defendant’s prior feelings toward the plaintiff cannot be shown for
Tbe only case to tbe contrary, aside from those cited in tbe opinion itself, is Barr v. Hack. Much of tbe argument used in support of that opinion by way of analogy and otherwise has already been repudiated in many cases decided since that time, and, as we think the doctrine of the opinion unsound, tbe decision is overruled. It follows that the objection to tbe question, in so far as it called for defendant’s opinion regarding plaintiff’s feelings toward him, should have been sustained; but, as the witness in answer gave simply his feelings toward plaintiff, no prejudice resulted.
Other points are made in the petition for rehearing, hut they are without merit.
The first division of the opinion is modified to the extent indicated, and the petition for rehearing will be overruled.