Herzman v. Oberfelder , 54 Iowa 83 ( 1880 )

Adams, Oh. J.

i. evidence : ■ statement of defendant.

I. The first question presented is in regard to the admissibility of the deposition of one Burke, for the purpose of proving the speaking of the alleged defamatory words. The defendant objected to tbe deposition, upon the ground that the cross-examination of the witness shows his testimony to be immaterial and incompetent, in that be does not testify to the statements of the defendant, but simply to bis own inferences and impressions drawn from conversations had by Mm with the defendant. The objection was overruled, and the deposition admitted.

The deposition so far as it pertains to the speaking of the words is as follows: “ Mr. Oberfelder told me that he had a chattel mortgage on the Iierzman stock in the years 1877 and 1878; that they were to turn over money as the goods were sold; that he got a small amount of cash in proportion to what he expected, and that the goods were not in the store, had been spirited away or were gone, and that he was swindled in the transaction some hundreds, I don’t know how many. This is about the substance from what I gathered from him. In this matter I think he meant both Mr. and Mrs. Herzman.” On cross-examination he said: “I do not pretend to give the exact language of the defendant. My testimony is the inference I arrived at, from my conversation with defendant, expressed in my own language. My impression is that he held both Herzman and. wife equally guilty.”

In giving the substance of what the witness gathered, he does not say that the defendant said anything about the plaintiff, nor anything from which it could reasonably he inferred that the defendant said anything about tbe jfiaintiff.

"When the witness says: “I think he meant both Mr. and Mrs. Herzman,” it is plain to be seen that that was merely the witness’ inference, and upon his cross-examination, he expressly says so. We cannot go beyond the words as constituting the substance of what the witness gathered. If in those words there does not appear to have been any reference to the plaintiff, it is immaterial what the witness’ inference or impression was.

The appellee insists, however, that if there was any error it was without prejudice, because the defendant pleaded justification, and because the speaking of the words was proved by undisputed evidence.

The admission in th„e plea of justification cannot avail tie plaintiff, upon the trial of the issue raised by the general denial. Barr v. Hack, 46 Iowa, 308.

Nor do we think that the speaking of the words was proved by undisputed evidence. The deposition of one Beokoff was introduced to prove the speaking. But it was of the same character as that of Burke, which we hold should have been excluded. In addition thereto we find upon this point only the testimony of one Mossier, but his testimony is substantially denied by the defendant.

2.--.- imrebuttal?11*' II. The plaintiff testified in her own behalf. The defendant introduced as a witness one Drake, whose testimony tended to impeach the character of plaintiff for truth and veracity. Upon cross-examination, the plaintiff’s counsel asked the witness if the plaintiff had not been a very hard working industrious woman, devoted to her business and the rearing of her large family. The defendant objected to the question as not being in cross-examination and immaterial, but the objection was overruled. It apppears to us that the objection was well taken. A character for industry and devotion to business would not be inconsistent with a want of character for truth and veracity. Indeed a want of such character sometimes arises from a devotion to business, and there is some evidence tending to show that it was so in the plaintiff’s case.

III. The plaintiff called the defendant as a witness, and asked him how much he was worth. This question was objected to as immaterial; The objection was overruled.

Whatever doubt we might have in regard to the propriety of admitting such evidence if the question were a new one, the admission of the evidence is not so clearly objectionable as to justify us in disturbing what may be considered the established rule in this State. Karney v. Paisley, 13 Iowa, 92.

Eor the errors above pointed out, the case must be

Reversed.