184 Iowa 485 | Iowa | 1918
There was published in The Evening Non
“A New Magazine Issued to the Banking Fraternity. (Below is a reproduction of the January title page.)
The Live Wire
A busy paper for Busy Headers
Published By The Charles E. Walters Company.
Published every little while.
Vol. 1 Council Bluffs, Ia., Jan., 1915. No. 1
Such is Life.
“Oftentimes many of us encounter disloyalty and treachery coming from a close personal friend. It always hurts our pride and our feelings, but we turn the page and forget it, because life is too short to spend in grieving. However, when a trusted employee who may also be a personal friend, or anyone employed in a confidential capacity, becomes a traitor, which often happens, through jealousy or possibly because it is in the blood, then that man becomes a dangerous element — a wolf in sheep’s clothing, and must be dealt with accordingly for the protection of mankind. Such a man is often discharged but in some cases the more charitable employer will allow him to resign. Isn’t it a fact when each of us look back over a period and recall the many similar cases of which we have personal knowledge, that in almost every case the man who went wrong was given really too much leeway. Whenever we hear of a case of that kind the following motto of our friend Elbert Hubbard is always suggested to the mind:
*488 “ ‘If you work for a man, in Heaven’s name work for him. If he pays wages that supply you your bread and butter, work for him; speak well of him, think well of him, Stand by him, and stand by the institution he represents. I think if I worked for a man I would work for him. I would not work for him a part of his time, but all of his time; I would give an undivided service or none. If put to a pinch an ounce of loyalty is worth a pound of cleverness. If you must vilify, condemn and eternally disparage, why, resign your position and when you are outside, damn to your heart’s' content. But, I pray you, so long as you are a part of an institution, do not condemn it. Not that you will injure the institution- — not that — but when you disparage that concern of which you are a part, you disparage yourself.’ ”
Resignation Accepted.
“At a recent meeting of the directors of the Chas. E. Walters Company, the resignation of J. W. Overstreet, formerly Assistant Secretary, was read and accepted. This will serve to notify the banking fraternity that he is no longer connected with this company. Mr. H. H. Byers, who has been with the company for some time, has been selected to fill the vacancy and we take great pleasure in announcing that Mr. Byers will give his entire attention to the management of our Bank Officers and Clerks’ department.
Fully Equipped.
“Launched upon the broad sea of commerce our vessel is modernly rigged and equipped — our flags are at full mast all the time and we are connected up with the ‘Live Wire,’ and as our pilot has instructions to avoid the turbulent seas of discord our voyage must of necessity be a pleasant one, not only for ourselves, but for our friends who seek passage with us. We have nothing to offer but first class*489 passage, with unlimited capacity, and our rates are not controlled by any syndicate. We stop to take on and to let off passengers everywhere and the word is ‘masters’ oí the situation.”
This is followed by four or five short paragraphs, relating more or less to the business of The Charles E. Walters Company. This is alleged to have been composed by and published at the instance of the Charles E. Walters Company, and the petition álleged that plaintiff was, and had been for some time, a resident of Council Bluffs, and, “up to about the first day of January, 1915, was the assistant secretary of the defendant, The Charles E. Walters Company, in the city of Council Bluffs, Iowa, and since the first day of January, 1915, has been engaged in the buying and selling of banks as a member of the firm of Bhodes Over-street Company, in Omaha, Nebr.;” that defendants and each of them, in publishing said article, intended to and did charge plaintiff with having committed an indictable misdemeanor, intended to and “did thereby deprive the plaintiff of the benefits of public confidence and social intercourse; and that they and each of them did, by said article so published, expose him to contempt and public ridicule, and intended to and did provoke him to wrath. Intended to and did injure and wrong him in his said vocation, calling, and business, as a private banker, engaged in the buying and selling of banks and bank stock, by charging plaintiff with being a traitor to his employer, a contemptible person, dishonest, and undeserving of confidence; and that the several statements in said article were scandalous, malicious, and defamatory; and that the same were so published of and concerning this plaintiff by the defendants and each of them, maliciously and with the express intent and purpose upon the part of defendants and each of them of injuring this plaintiff in his good name and standing in this community where he resides, and also in Omaha, Nebraska, Douglas
Defendant Charles E. Walters Company denied the publication; but, if it was published, averred good faith, in that the publication was' for justifiable ends; denied that it was false, scandalous, malicious, or defamatory; and averred that the statements therein were true. The defendant New Nonpareil Company admitted the publication of the newspaper, as alleged, and that it had a wide circulation in the state of Iowa, and “to some extent in and through several states bordering thereon;” denied publication of the article as the same appears in the pleadings, and that it was false, scandalous, malicious, or defamatory; and alleged that a somewhat similar article ivas published by it at about the time alleged, that it was received as advertising matter, in due course of business, and as such published by this defendant without malice, that plaintiff was not known to anyone in its employment, and it was not aware that said article had reference to plaintiff.
The second count was substantially the same, except that the publication is said to have been made in the morning of the following day. An amendment was -filed, alleging that the article was false; that defendants so knew; that same was published maliciously; and that persons reading said article understood it to refer to plaintiff, and defendants so intended. Later on, plaintiff filed another amendment, asserting that plaintiff was caused physical pain, anguish, humiliation, chagrin, and disgrace, to his damage in the sum of $1,000.
The third amendment alleged that the Charles E. Walters Company, prior to January G, 1915, maliciously published and sent through mails the article, in pamphlet form, to banks and bankers in Iowa and the central and western states. The fourth amendment withdrew the portion of the
I. It is to be observed that conspiracy is charged only in publishing the article in pamphlet form and distributing it among bankers. No evidence was adduced tending to prove conspiracy or the publication of such pamphlet; and, at the close of the evidence, on motion of defendants, the issues with reference to publishing any pamphlet were withdrawn from the jury, and need be given no further consideration.
“Appellants insist that, as conspiracy was alleged, no recovery could be had unless this were proven. Were the wrong alleged actionable only because of an unlawful combination of several persons, the position would probably be sound. Jenner v. Carson, 111 Ind. 522 (13 N. E. 44); Collins v. Cronin, 117 Pa. 35 (11 Atl. 869). But where the tort may have been committed by one or more, independent of any conspiracy, that allegation is of no consequence, so far as the cause of action is concerned. Damage is then the gist of the action, and not conspiracy. In order to recover against all defendants, it is necessary to prove a combination or joint act of all. For this purpose, proof of conspiracy may become essential. But if it turn out that but one was concerned, recovery may be had against that one, the same as though he had been sued alone. If more than one jointly do the wrong, like recovery may be had, though conspiracy had not been established. In other words, the allegation of conspiracy in such cases is mere matter of inducement and evidence, the injury and damages being the gravamen of the action.”
There was no misjoinder of parties; and defendants, by failing to raise the question by motion before answer, waive the alleged misjoinder of causes of action.
The article alludes to the employee contemplated as a possible friend, or employed in a confidential capacity, and characterizes him as disloyal, treacherous, a traitor, a hypocrite; and intimates that, though he might have been discharged, he was, in charity, permitted to resign. From the use of the words “many of us,” “each of us,” and “we,” the fair inference is that the purported publisher, Charles E. Walters Company, had gone through the experience described. Indeed, it all but said so, in the question, “Isn’t it a fact, when each of us look hack over a period and recall the many similar cases of which we have personal knowledge, that, in almost every case, the man who went wrong was given really too much leeway?” Then the reference to the excerpt from Hubbard. Following, with but four “ems” intervening, and under “Resignation Accepted,” is the recital of the resignation of plaintiff and its acceptance. It connects perfectly with what precedes ; for that suggested a confidential relation, and plaintiff is said to. have been assistant secretary; it suggested that the employee might be allowed to resign, his resignation is ánnounced, and said to have been accepted; it suggested that he was trusted, and he must have been, if made assistant secretary. Moreover, the separation by the “ems” no more than indicated a subdivision of the same subject-matter, under a different headline, and ordinarily would be regarded as a subdivision of the same article. A person reading the entire matter said to have been taken from the “Live Wire” might connect the discussion to and reasonably infer that it referred to J. W. Overstreet, who is said
An objection as incompetent, immaterial, and irrelevant, and one of the ultimate facts to be determined by the jury, and calling for a conclusion, was sustained. There was no error. The witness was not shown to be possessed of any special knowledge of the parties, relationship, or situation qualifying him to speak, save from an examination of the article. To warrant the reception of evidence of this character, it must be “first shown that some circumstance was known to him [the witness] which reasonably gave the words a special meaning.” 3 Wigmore on Evidence, Section 1971. Without such qualification, a person would be in no better situation to pass on the question thari other readers, or any juror. In other words, he necessarily obtains the defamatory information, if such it be, as others of the community, rather than as readers with special facilities for understanding what is said. Even though the language be conceded to be somewhat uncertain or ambiguous as to who was intended, neither this witness nor others called was shown to be aware of anything which, would better enable them than other readers to say whether plaintiff was intended. See Knapp v. Fuller, 55 Vt. 311 (45 Am. Rep. 618). To justify the reception of what a witness understood from reading, he must first show knowledge of explanatory facts or circumstances tending to qualify him to speak on the subject. Anderson v. Hart, 68 Iowa 400, 401; Quinn v. Prudential Life Ins. Co., 116 Iowa 522; Tomp
An objection as incompetent, immaterial, and irrelevant and not binding, was sustained. The witness was not permitted to testify how long the call of the advertising man was prior to the publication, nor the conversation as to what he came for. The witness then testified that E. W. Walters was responsible for getting “the stuff” in the article together; that Byers wrote some.
“In the article ‘Such is Life’ is copied from Fra. E. W. Walters did the work. E. W. Walters wrote the article beginning with the line ‘Resignation Accepted,’ and the article following. * * * I do not know the name of the advertising man of the Nonpareil, — he was a tall, slender fellow. Q. Did you hear any conversation at all between Ealph Walters and this advertising man while he was there, in regard to this article, — the publication of the same in the Nonpareil?”
It will be observed that, previous to the first quoted question, R. W. Walters had been shown merely to have been secretary of the company. It might not be inferred, that he had charge of its advertising department, or was authorized to speak for the company with reference thereto. On this ground, the ruling was rightly sustained.
Thereafter, the witness swore to Walters’ connection with the preparation of the article, but nothing was added with reference to his authority to act for the defendant; and, on the ground of absence of authority, the objection to the ruling may be sustained. Of course, a ruling the other way would not have been erroneous; for the order of the introduction of evidence is so largely a matter of discretion that the trial court might have received the evidence and admitted evidence of authority later on. Roemer v. Jacob Schmidt Brewing Co., 132 Minn. 399 (1916E, L. R. A. [N. S.] 771), relied on by appellant, is not inconsistent with this conclusion.
