Yocum v. Husted ( 1918 )

Salinger, J.

I. The petition was in three counts. We need consider the first one only, because all matter added in the second and third count to the’ allegations of the first has no support in the evidence. The first count charges that the defendants, Boyd Husted, Earl Husted, and Gale Husted, conspired together at the funeral of their father, who was the husband of the plaintiff, to publish the false accusation that plaintiff was guilty of the murder of her said husband, by poison administered.

At the close of all the testimony, all three of the defendants moved jointly and severally that verdict be directed for them, on the general ground that there was no competent evidence of conspiracy or of joint action, to support a recovery on the petition. The court finally directed verdict for all of the defendants, and appellant complains.

l. appeal and tion03K:'ePreiu“mp" aence: necessity to disclose purpose. The record is out of the ordinary, in that most of it exhibits exclusions of testimony. Practically all received was this: Plaintiff was married to the father of the defendants on May 27, 1913; she lived with him until his death; all arrangements were made for having the funeral cortege depart, but the departure was held up for something like an hour; while m the carriage m the funeral procession, with her daughter and thedaughter’s husband, the defendant Earl Husted, the latter said to plaintiff she never would have come out and married his father if she hadn’t wanted to get his money; she answered, “Do you think, as happy as your papa and I lived together, that I would do anything to shorten his days?” and he replied, “It looks that way;” and aftei the death, plaintiff and some of the sons called on the doctor who attended decedent in his last illness, bottles of medicine were brought, and the substance of the talk was a statement by Earl, in connection with the death of his father, that they suspected the poisoning of the father by plaintiff. But, on the authority of Campbell v. Park, 128 Iowa 181. we may consider what would be in the record, had it not been wrongfully excluded. As was said in Ballinger v. Connable, 100 Iowa 121, at 129:

“It is well to consider wbat the question- propounded to the appellant and the testimony which it was proposed he should give, tended to prove.”

At this point, appellee urges that there should be no reversal for exclusion, unless there be a formal offer to show what answer is expected. The writer took that position in the dissent in American Exp. Co. v. Des Moines Nat. Bank, 177 Iowa 478, but was in the minority. ‘Beyond debate, it is easier to infer what would have been answered in the case before us than to infer it in the Express Company case. And within the -rule of that case, the form of questions here, in the light of the whole record, sufficiently indicates what plaintiff was attempting to prove. • It may be added that proffert was frequently made and frequently rejected or excluded. •

2. Evidence : adienceCe or s1’

3. conspiracy: evidence.

4. Libel and SLANDEB : evifamatorydsense of words.

Had some of the exclusions complained of not been made, it may reasonably be said that much would have been added to the weight of the testimony for the plaintiff. We should now know why proceeding with the funeral procession was delayed. Had it not been stricken out, the record would show that the undertaker, Benson, said, in the presence of Gale Husted and of others, “Mrs. Husted, you have already got more trouble than you could bear; I have still another to add to it; your son accuses you of his father’s death;” that plaintiff then inquiring what son it was, Benson replied, pointing to Gale, “that one there,” and said it was Gale; that Gale remained silent, and did not deny he was making such accusation. Under the principle declared in Foster v. Trenary, 65 Iowa 620, at 624, this made it at least a question for the jury whether Gale was making such accusation. Had it not been stricken out, it would be in the record that, after being told of the attitude of Hale, plaintiff went to an upstairs room, where her daughter and defendant Earl Husted were; that, in the presence of Earl, she said to her daughter, “Do you know -why they have held the funeral?” The daughter replying, “Why?” plaintiff said, “The hoys are suspicious of me being the cause of your father’s death.” The daughter exclaimed, “Oh, Earl,” and fainted; and Earl seems to have remained silent, except for the statement in the carriage, made later, and already set out. Had it been received, we would. have an answer from plaintiff as to whether, on the day of the funeral, there was an accusation or charge made against her, accusing her of being the cause of her husband’s death, and who made it. We would have an answer from the undertaker, on whether either of the defendants asked him as to the wisdom of calling up, or told him to call up, the coroner or county attorney, and whether he did call these officers up, and at the request of the defendants, or one or more of them. The undertaker did testify he had conferences with some of the defendants in two places, but was not allowed to say whether, as a result thereof, he called up the county attorney, and inquired whether, under the circumstances, he should proceed with the funeral; whether or not, from what he heard the defendants, or some of them, sav, he believed it his duty not to inter the body until after the facts had been laid before the peace authorities. The county attorney was not allowed to say whether the undertaker called him up in reference to this subject, and if he did, what he said. Had his testimony been received, it is reasonable to infer he might have said Benson informed him that members of the Husted family were objecting to the interment of the body; that these members claimed the death of. their father was caused by foul play; and that the undertaker wanted the advice of the county attorney on whether the body should be interred then, or further developments be awaited. Had answers been permitted, there would have been such tes1 ’ timony as is permitted by cases like Arnold v. Lutz, 141 Iowa 596, Barton v. Holmes, 16 Iowa 252, Kidd v. Ward, 91 Iowa 371, Wimer v. Allbaugh, 78 Iowa 79, and Prime v. Eastwood, 45 Iowa 640, as to the understanding of words spoken, leaving it a question for the jury whether the words were used in a defamatory sense. Had reasonable latitude in receiving testimony been indulged in, there is every reason to believe it would have become -a question for the jury whether what each of the defendants said, did, or omitted to do, established that they were acting together in charging the plaintiff with having murdered her husband. It may be conceded that no one of the items excluded would make a case for a jury, or even that all the excluded matters would not make such a case, without being added to what was received. But a litigant is not bound to make his case by one answer, and it is clear there was error in excluding many proper items of proof. This is so unless a conspiracy may not be shown by circumstantial -evidence and reasonable inferences and deductions therefrom — which is not the law. See Spies v. People, 122 Ill. 1 (12 N. E. 865).

We are of opinion that the exclusions which have been referred to were erroneous, and that the testimony received, plus what it is reasonable to believe would have been added, had there not been such exclusions, required submitting the charge of conspiracy to the jury. This, of course, is a contingent holding; and whether, on retrial, this charge shall be submitted to the jury, depends upon whether the answers erroneously rejected will be, in substance, what we have assumed they will be. This is necessarily the situation, whenever there is a reversal for exclusion. We Cannot reverse without inferring that what was excluded is material. But it may always transpire that, when answer is made, nothing material is adduced.

5' prooif aífd‘ cyCto sianderT indivíduüi sianII. The trial court held that, though proof of conspiracy had failed, yet any individual defendant might be held liable, if there was evidence that, as an individual, he did what the petition charged; and it was of opinion there was evidence of such individual action against the defend-an^g garj jjusted and Gale Husted. In some of the earlier cases, this court took the view that, where a joint tort is averred, a joint tort must be shown, and if that fails, no judgment of any kind should he rendered. See Barnes v. Ennenga, 53 Iowa 497. This holding of the Barnes case was, in effect, overruled in Boswell & Tobin v. Gates, 56 Iowa 143, at 144, in Lull v. Anamosa Nat. Bank, 110 Iowa 537, at 544, and in State v. McAninch, 172 Iowa 96, at 105. The great weight of authority in the present day is against said ruling in the Barnes case. Charges of joint action are now dealt with “on the simple theory that two equals two times one; that an accusation that A and B committed a murder is, in logic, equivalent to asserting that A committed murder and that B did, and that, therefore, B may not escape because A proves innocent.” And see Rush v. Commonwealth, (Ky.) 47 S. W. 585; State v. Wadsworth, 30 Conn. 55, 57; State ex rel. Griffin v. Mills, 39 N. J. L. 587; State v. McClintock, 8 Iowa 203, at 206; Chitty on Criminal Law (3d Am. Ed.), 270, 271; State v. Hunter, 33 Iowa 361; Commonwealth v. Brown, 78 Mass. 135; Boswell v. Gates, 56 Iowa 143, 144. It is said in Commonwealth v. Brown, supra:

“It is a well-established principle, in all cases, civil as well as criminal, that a charge in tort against two is several, as well as joint, against all and each of them. All or part may be convicted, and all or part may be acquitted.”

And in Lull v. Anamosa Nat. Bank, 110 Iowa 537, we say that this rule “is alike applicable to actions ex contractu and ex delicto.” In Young v. Gormley, 119 Iowa 546, the charge was that a mayor and two councilmen conspired and confederated together unlawfully to injure plaintiff’s real estate, etc.; and we held that, to” bind all, a conspiracy must be shown; but that, where a tort may have been committed by one or more, independent of any conspiracy, the allegation of conspiracy is immaterial, and recovery of damages may be had against any participating in the tort. We adhere to this rule. But though we do so, we are of opinion that, on retrial, such rule should not be applied to this case. The basis of the rule is that an act is complained of which the defendants may do jointly or severally.

Now, libel may be the joint act of several. One may furnish the material for the publication, and another publish it. After the publication is made, a third person may ratify it, or be jointly held for circulating the published libel, by selling the publication or helping sell the same, or otherwise putting the libelous, article before those who, without his aid, might not see it. See Fogg v. Boston & L. R. Co., 148 Mass. 513 (20 N. E. 109) ; Wharton on Criminal Law (10th Ed.) Section 211a; State v. Armstrong, 106 Mo. 395 (16 S. W. 604). But though this be so of libel, it is not true of slander, because there cannot be a joint slander. See Hinkle v. Davenport, 38 Iowa 355, 358. When several say the same slanderous words of the same person, it is, in the Very nature of things, an individual offense, and never a joint act. No joint liability arises unless there is a conspiracy to slander. Hence, slander is an exception; and if there be a suit for conspiracy to slander, the case is at an end if there be no evidence of conspiracy, even though there be evidence that the defendants, as individuals, did slander.

Having held that, if the proof failed on concerted action, the plaintiff might not proceed against either defendant, it, of course, becomes unnecessary for us to pass upon the complaint that the trial court erred in compelling the plaintiff to elect against which one of the defendants she would proceed as an, individual.

III. Many other exclusions of testimony are claimed to have been erroneous. As to these, it suffices to say that the exclusion máde was either right, or,' if erroneous, was harmless; and that still others are not likely to recur on retrial. The direction of verdict in favor of the defendants was erroneous. Wherefore, the judgment below is reversed. —Reversed and remanded.

Ladd, Weaver, Gaynor, and Stevens, JJ., concur.