Ellis v. Lindley , 38 Iowa 461 ( 1874 )

Cole, J.

l. slander: damages?' — I. The court instructed the jury, among others, as follows: “16. If defendant has deliberately and repeatedly made the charge against plaintiff, of swearing falsely, and it is not true, and you are satisfied it was done maliciously, you should consider this in aggravation of damages.” This was error. It was expressly said by this court in Beardsley v. Bridgman, 17 Iowa, 290; that such evidence “ is not admissible to bear upon or to aggravate the damages.” The authorities seem to be almost uniform upon this question; see those cited in the ease just quoted. In Forbes v. Myers, 8 Blackf., 74, an instruction that “ if the defendant repeated the charges at various times, it would be a circumstance the jury might take into consideration as proof of malice and aggravation of damages,” was held erroneous. In this case it appears from the evidence that the defendant repeated the charge against the plaintiff of swearing falsely, both before and after the action was brought.

2. justificaof evidence, II. The court also instructed the jury that “it takes the same degree and certainty in the evidence to fully support the plea of justification, that it would to convict on indictment for perjury.” This rule has been heretofore expressly approved by this court. See Fountain v. West, 23 Iowa, 9, and cases there cited. We cannot overturn this rule, in the face of our previous decisions and the weight of the authorities in support of it.

Other questions are made upon the action of the court in refusing to exclude certain evidence introduced by the plaintiff, on the ground that the defendant, had, since its introduction, abandoned in part his plea of justification, and withdrawn portions of his testimony upon that branch of his defense. But since the judgment must be reversed for the error first above adjudged, and since, by reason of the change of the issues, the same questions cannot again occur, it is unnecessary for us to review these other questions.

Reversed.