Hess v. Fockler
25 Iowa 9
Iowa
1868
Check Treatment
Oole, J.

i. slandee : evidence. The petition charges that the female defendant in presence of divers persons did maliciously and falsely accuse the female plaintiff of stealing certain table cloths belonging to defendants, by using the following false and defamatory language of and concerning the female plaintiff, to wit: “My table/( cloths are gone, and you know where they are gone. If you will bring the table cloths back, I will say nothing about it. You have got them. My husband has gone down town to get a warrant against you, to search your house for the table cloths and imprison you.” Answer in denial, and. also setting up mitigating circumstances. The testimony was conflicting. That of plaintiffs tended to prove the speaking of the words as charged, the only direct testimony thereof being by the female plaintiff herself, while defendants’ testimony was contradictory thereof. The plaintiffs asked the court to instruct the jury as follows: “ If the jury believe from the evidence, *11that the female defendant ¶ spoke the words, substantially as alleged in the petition, of and concerning the female plaintiff, in the presence or hearing of any person besides the female plaintiff, it will be your duty to find a verdict for the plaintiffs.” Which instruction the court refused to give as asked, but gave the same with the following qualification, to wit: Altered by adding, “ provided you find from the evidence that the words charged have been substantially proven by some person other than the plaintiff, who was present when the words were uttered, and heard the words spoken.” The plaintiffs duly excepted to the refusal to give the instruction as asked, and to the giving of the same as altered. The action of the court in this particular is the only error assigned.

The plaintiff was a competent witness (Eev. § 3978) ; and if the words charged were proven by her testimony to have been spoken by the defendant in presence of others, there is no reason why the jury, if they believed her, might not' find a verdict upon her testimony, as well as upon that of “ some person other than the plaintiff.” We are not able to discover any legal or reasonable ground upon which the alteration can be sustained.

2__sense worfswere understood. But it is insisted, that the words do not impute a crime, and that it was necessary for the plaintiffs to prove what was the under standing, by the hearers, of the words used. The words charged in the peti^on £0 have been spoken by defendant of the plaintiff, when given their fair and natural construction, do impute a crime. The plaintiff is accused of having gotten the table cloths under such circumstances as would imprison her. Certainly she could not be imprisoned unless she had committed a crime. While it is true that the words shall be construed in the sense in which the hearers understood them, it is also true that the sense in which the hearers understood them may be determined by *12the jury from the words themselves, and the facts ,and circumstances attending the speaking of them. Barton v. Holmes, 16 Iowa, 252. It was not, therefore, necessary for plaintiff to introduce as witnesses those who heard the words spoken, and prove by them the sense in which they understood them; although, where the meaning is not clear, such testimony is competent. Barton v. Holmes, supra.

If' the words were spoken under such circumstances as to make them in law a privileged communication, they should be so pleaded and insisted upon at tbe trial. Sucb claim, made for tbe first time on the bearing of tbe appeal, cannot operate to defeat tbe right of tbe plaintiff to a fair trial upon the facts and law before the jury.

Unversed.