O'Neil v. Adams , 144 Iowa 385 ( 1909 )

Ladd, J.

1. Slander and cation:Jevi-fi' dence. I. This is an appeal from a judgment for defendant in an action for damages alleged to have resulted from the publication of certain articles in a newspaper, known as The Seymour Leader. The court held that the articles were libelous, and that the burden of proof was on the defendant to establish the allegations of his answer, which were, in substance, that the articles were true, and were published with proper motives, and, in mitigation of damages, that defendant believed, and had good ground to believe, them true,' and in publishing them in his paper acted with proper motives, and also that plaintiff’s general moral character in Seymour and vicinity was bad. In support of these allegations^ the plaintiff was called as a witness, and it appeared from his testimony that during eight years previous to February 14, 1907, he had been engaged in the occupation of taking orders from individuals in Iowa on the Ford-Heim Brewing Company of Kansas City, Mo., for beer and whisky. These orders were sent to that company, and the intoxicating liquor shipped by it to the several purchasers from whom plaintiff collected the purchase price. His home was at Center-ville, but he visited Seymour on Saturdays, and frequently on Sundays, for the purpose of taking orders or collecting from patrons. In the evening of February 9, 1907, he was arrested on the charge of intoxication, and confined in jail for about an hour. While there, a stove toppled 'over and was broken. This evidence bore directly on the issues raised, and was admissible.

2. Same: special damages. II. Complaint is made of certain rulings with reference to allegations in amendments to the petition, alleging special damages because of loss of patrons and sale of intoxicating liquors owing to the publications. As the taking of orders of customers alleged to "have been lost would have been illegal, no injury resulted, and the rulings were correct. McCollum v. McConaughy, 141 Iowa, 172.

3. Libel justification: evidence. III. Exceptions were taken to rulings which permitted testimony by plaintiff of the method pursued in the prosecution of the business he was engaged in, and to the extent of that business. Such evidence tended directly to sustain the charge that he was engaged in an illegal avocation, and tended to justify the characterization of him found in the published articles. True, the court instructed that his occupation was lawful, evidently following State v. Hanaphy, 117 Iowa, 15, but that cause has since been found not to have correctly construed the laws of the general government. McCollum v. McCorumghy, supra. Even though the court may have erred in plaintiff’s favor in the instructions, the rulings on the admissibility were correct.

4. Same: evidence. IV. Plaintiff was asked of what he was charged when arrested. An objection to the effect that this called for secondary evidence was overruled. As no information had been filed nor warrant issued, the inquiry must have called for the oral accusation, and for this reason the exception is not well taken. For a like reason the testimony of the justice of the peace that plaintiff was brought before him was admissible, rather than the return of the officer. Exception is also taken to the rulings admitting evidence identifying the justice’s dock and also the docket. The ruling in the absence of any showing of what the docket contained must be presumed to have been correct. The mayor’s docket was properly identified, and that portion recording the conviction of plaintiff on the charge of drunkenness admissible in evidence. If some of the recitals were incorrect, plaintiff had the benefit of the mayor’s concession to this effect. That the record was admissible to prove his conviction is' too clear, for argument.

5. Same. V.A witness was asked to explain á demonstration to which he had referred, and over objection answered that a large number of citizens met at the mayor’s office, and by agreement invited the plaintiff in, and asked him if he would not quit coming to the town on the business he was engaged in, to which he answered that he would not. The evidence bore directly on two charges made against him in the articles, and was clearly admissible. ' -

1. Circulation of libel: fading: evidence. VI. The petition alleged the circulation of the newspaper in Seymour and vicinity. Evidence of its circulation in Centerville was tendered, but rejected on defendant’s objection. The ruling wag goun(j for that the pleading had limited the field within which injury had been suffered,

7. Libel: evidence good. VII. Defendant by way of justification pleaded that plaintiff’s general character, and general moral character in Seymour and vicinity at the time of the publication of the several articles was bad. As to the last two articles, this was also pleaded, in mitigation of damages. Evidence was adduced in support of these allegations, to meet which plaintiff tendered proof of good character in Centerville. An objection thereto was sustained, and rightly so, for such evidence would not have tended to rebut the testimony concerning his character at Seymour and vicinity, nor would it have obviated the mitigation to which defendant might be entitled in the territory of the newspaper’s circulation.

8. Same: credibility of witness. Undoubtedly, proof of general character when in issue generally is not necessarily confined to a single locality. See Hanners v. McClelland, 74 Iowa, 318; McGuire v. Kenefick, 111 Iowa, 141. But the charge of bad character had not been interposed, nor the evidence introduced, as bearing on his credibility as a witness. This would not have been permissible, as plaintiff had been called as defendant’s witness. The attempt was to refute evidence of bad character as a justification for using language imputing such, in one locality, by proving that the party’s character was otherwise somewhere else. Whether such evidence might be admissible were knowledge of the good character of the party elsewhere brought home to the publisher need not now be considered, for proof of such knowledge was not tendered. In the absence thereof the testimony was rightly rejected. That the character of plaintiff at places other than where the paper was alleged to have circulated was' not admissible is too clear to require more than a statement to that effect.

9. Pleadings: amendment: continuance. VIII. On the day of the trial plaintiff filed an amendment to his petition, alleging in substance that the Seymour Leader had a large circulation in Appanoose County at the time the articles were published; that many copies reached citizens of , Centerville; that marked copies thereof were sent to plaintiff and wife, and the articles were copied in a newspaper at Centerville. On motion of defendant the amendment was stricken; plaintiff being given- the option of continuing the 'case over the term, or have this done. This was on the ground that defendant was not prepared to meet the allegations contained in the amendment. The ruling was within the discretion of the court. Parties who do not complete their pleadings until trial has begun ordinarily have no room to complain if the trial court declines to look with leniency upon their procrastination, especially where no excuse is suggested. The burden of making a showing which excused the delay in pleading the matters set out in the amendment'was on plaintiff, and not on defendant, to prove, as is assumed, that he would be prejudiced by proceeding with the trial.

10. Libel: priviledge: evidence. IX. Objection was made to testimony of defendant as to how he came -to publish the several articles and his purpose in so doing. This evidence was admissible as tending to support the plea of privilege. Morse v. Times-Republican Printing Co., 124 Iowa, 707; Prewitt v. Wilson, 128 Iowa, 198.

11. Same: exclusion of evidence: harmless error. X. Objection to an inquiry as to what effect the articles had on plaintiff personally when his attention was first called to the publication was sustained. The ruling mieht well have been the other way, but there could have been no prejudice, inasmuch as the court instructed in effect that the articles were libelous per se, and the jury found that the plea of justification was established.

12. Libel: burden of argument: prejudice. XI. Exception is taken to the court’s ruling that the burden of proof was on the defendant. This was tantamount to saying that the articles, the publication of which was admitted, were libelous per. se. Surely, in the absence of a plea of special damages, this was correct.' Even if otherwise, it is difficult to find room for plaintiff’s complaint. In the second instruction the jury was told to allow plaintiff damages, unless the defense had been established by a preponderance of the evidence, so that the only advantage, if any, of having the opening and closing related to the amount of damages to be allowed. But the jury did not reach this, and only passed on'the issue wherein the burden of proof was cast on the defendant. In these circumstances error can not be predicated on the ruling. O'Conner v. Kleiman, 143 Iowa, 435.

XII. Exception is taken to several of the .instructions. The criticisms are directed in the main at what they do not contain rather than in any error in what they said. Some of them might well have been more explanatory, but in the absence of proper requests, were without error. Nothing will be gained by reviewing them in detail, nor the evidence, in declining to interfere with the ruling which denied a new trial. Had the rules of this court been observed by appellant in the preparation of his brief, we should have been more inclined to a separate consideration of the questions presented.

We have discovered no reversible error, and the judgment is affirmed.