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REHEARINGS DENIED.

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

Agnew v. Baldwin (Wis.) 116 N. W. 641.
Anderson v. Buchanan (Iowa) 116 N. W. 694.

Beck v. Umshler (Iowa) 116 N. W. 138.
Beloit, D. L. & J. R. Co. v. Macloon (Wis.)
116 N. W. 897.

Bradley v. Burkhart (Iowa) 115 N. W. 597.
Braun v. Mathieson (Iowa) 116 N. W. 789.
Brown v. Honeyfield (Iowa) 116 N. W. 731.

Collins v. Gleason Coal Co. (Iowa) 115 N. W.

497.

Connell v. Iowa State Traveling Men's Ass'n (Iowa) 116 N. W. 820.

Crabtree v. Steele (Iowa) 115 N. W. 593.

Horicon Drainage Dist., In re (Wis.) 116 N.
W. 16.

Hurd v. Northern Accident Co. (Mich.) 116
N. W. 977.

Keller v. Harrison (Iowa) 116 N. W. 327.
Kirkpatrick v. London Guarantee & Accident
Co. (Iowa) 115 N. W. 1107.

Lahn v. Koep (Iowa) 115 N. W. 877.

Lonier v. Ann Arbor Sav. Bank (Mich.) 116
N. W. 1088.

Lowery v. Lowery (Iowa) 115 N. W. 1035.

McCord v. Eastern R. Co. of Minn. (Wis.) 116
N. W. 845.

Crawford v. Standard Tel. Co. (Iowa) 115 N. McCutchen v. Roush (Iowa) 115 N. W. 903.

W. 878.

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Fallon v. Vandesand (Wis.) 116 N. W. 176.
Fleming v. Loughren (Iowa) 115 N. W. 506.
Frauzen v. Hammond (Wis.) 116 N. W. 169.

Graham v. Detroit, G. H. & M. R. Co. (Mich.)
115 N. W. 993.

Hagenah v. Milwaukee Electric Ry. & Light
Co. (Wis.) 116 N. W. 843

Hall v. Chicago, R. I. & P. R. Co. (Iowa) 116
N. W. 113.

Hardy v. Chicago, R. I. & P. R. Co. (Iowa)
115 N. W. 8.

Harney v. Chicago, R. I. & P. R. Co. (Iowa) 115 N. W. 886.

Helverson v. Chicago, R. I. & P. R. Co. (Iowa)
116 N. W. 699.

Hendrix v. Letourneau (Iowa) 116 N. W. 729.
Herbert v. Lloyd (Iowa) 116 N. W. 718.
Horicon Drainage Dist., In re (Wis.) 116 N.
W. 12.

Maxon v. Gates (Wis.) 116 N. W. 758.
Meirkord v. Helming (Iowa) 116 N. W. 785.
Ottumwa Mill & Construction Co. v. Manches-
ter (Iowa) 115 N. W. 911.

Rhodes v. Des Moines, I. F. & N. R. Co. (Iowa)
115 N. W. 503.

Roenfranz v. Chicago, R. I. & P. R. Co. (Iowa) 116 N. W. 714.

Schmidt v. Hauer (Iowa) 111 N. W. 966.
Slattery v. Slattery (Iowa) 116 N. W. 608.
State v. Gage (Iowa) 116 N. W. 596.
State v. Lewis (Iowa) 116 N. W. 606.
State v. Mitchell (Iowa) 116 N. W. 808.
State v. Partipilo (Iowa) 116 N. W. 1049.
State ex rel. Carroll v. Corning State Sav.
Bank (Iowa) 115 N. W. 937.
Sturgis v. Slocum (Iowa) 116 N. W. 128.

Tebbs v. Jarvis (Iowa) 116 N. W. 708.

Walkup v. Beebe (Iowa) 116 N. W. 321.
Weien's Will, In re (Iowa) 116 N. W. 791.
Whealkate Min. Co. v. Mulari (Mich.) 116 N.

W. 360.

Woodruff v. Langford (Iowa) 115 N. W. 1020.

See End of Index for Tables of Northwestern Cases in State Reports.

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THE

NORTHWESTERN REPORTER.

VOLUME 117.

DORN & McGINTY et al. v. COOPER.* (Supreme Court of Iowa. July 9, 1908.) 1. LIBEL AND SLANDER ACTIONS-EVIDENCE -ADMISSIBILITY-MALICE.

In a libel suit for having published in a newspaper an article alleging that a pool existed among persons engaged in buying hogs in N., among whom were plaintiffs, and that the dealers paid only 4.50 to 4.80 for hogs on a certain day, when the price paid in South Omaha was 5.80, in order to show actual malice, plaintiffs undertook to show the market price of hogs at South Omaha, at N., and at other near-by towns on the date mentioned in the published article. Held, that to rebut the inference of actual malice defendant could show what the market price was at N. on that day, and what he was told by others regarding the prices being paid at that time, and that he did not know of the existence of plaintiffs' firm.

2. SAME-PLeading-JusTIFICATION.

Defendant not having pleaded the truth as a defense, his evidence was not admissible in justification.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 249.]

3. SAME PLEADING-MITIGATION OF DAMAGES.

The testimony was not admissible in mitigation of actual damages not having been pleaded in mitigation, and the article not purporting on its face to be based upon anything save defendant's own knowledge.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, 88 250-254.] 4. SAME.

Even if the testimony were pleaded in justification, it could not be received in mitigation of actual damages.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 254.] 5. APPEAL AND ERROR-REVIEW ERROR-ORDER OF PROOF.

- HARMLESS

In an action for libel for having published an article alleging that a pool existed among dealers in hogs in N., among whom were plaintiffs, and that the dealers paid on a certain day only 4.50 to 4.80, when the price paid in South Omaha was 5.80, where defendant was allowed to ask a witness as to what another firm buying hogs in N. had said the market price was there on that day on the assurance of counsel that he would follow it up by showing that the information was imparted to defendant, which he did not do, and plaintiffs did not thereupon move to strike the evidence from the record, they cannot complain of its admission on appeal, since the order of introducing testimony rests in the discretion of the trial court, and the judge was justified in receiving the evidence upon th pr mise of counsel. *Rehearing denied.

117 N.W.-1

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In a libel suit, where the evidence showed without conflict that defendant knew or believed that plaintiffs were in a certain business, an instruction submitting that issue was erroneous. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.]

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8. LIBEL AND SLANDER - DAMAGES-AMOUNT AWARDED.

While nominal damages may be awarded in libel suits, yet as a general rule the law presumes actual damages from the publication of an article libelous per se.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 352.]

9. SAME ACTION - TRIAL-INSTRUCTIONS COSTS.

In a libel suit, where, because of an offer made by defendant to confess judgment, an award of nominal damages of one cent or ten cents would not carry the costs, an instruction that nominal damages are given where no actual injury or damage has resulted to plaintiff, and in such case some small sum as one cent or ten cents is awarded so as to carry the costs against defendant, was erroneous because misleading. 10. SAME.

It is the better practice in libel suits not to refer to the costs in the instructions. 11. SAME-INJURY TO BUSINESS-PUBLIC HATRED AND CONTEMPT.

The Legislature, by enacting Code, §§ 50605062, making pools and combinations to regulate or fix the price of any commodity a 'crime, declared the public policy of the state, though the statutes be unconstitutional because of lack of uniformity in operation or of varying degrees of punishment, and the publication of an article. charging persons with effecting a pool or combination is libelous per se, as tending to expose them to public hatred or contempt and to injure their business or trade, since the law of libel must keep pace with public opinion as reflected in the public prints as well as in legislation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 1-9.]

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge

Action to recover damages for libel. Trial to a jury. Verdict for plaintiffs in the sum of $1. Judgment on the verdict and against plaintiff for costs. Plaintiffs appeal. Reversed.

John P. Organ, for appellants. Reed & Robertson, for appellee.

DEEMER, J. A. A. Dorn, one of the members of plaintiff firm, was a competitor of defendant in the general merchandise business in the town of Neola, Pottawattamie county. He was also engaged with J. E. McGinty in the business of buying live stock. In the town of Neola there was published a newspaper known as the "Reporter," and defendant had a half page of this newspaper reserved for advertising purposes. Defendant composed and had printed in the Reporter the following upon the half page reserved by him: "Flour. two cars of Marshall's

Flour we bought

Best Flour four months ago and sold them and bought two more and have about sold them. We buy flour to sell, not to carry through four of the hottest months in the year, May, June, July and August. I would advise a close inspection of flour carried through these hot months. I would sell it for anything I could get and invest it in hogs-something that I could sell. The hog business is better than the flour business because hogs will always sell at a good big profit. We are thinking of going into the hog business ourself and see what effect it will have on the nice little pool that exists since our friend Mr. Osborn left this market. We have noticed that Neola has changed from one of the best hog markets in the whole country to one of the most bummy. My advice to the merchants is to immitate Underwood and place a buyer here to pay what the stuff is worth. The best grade of hogs sold for 5.80 in So. Omaha Oct. 13 with the Neola market from 4.50 to 4.80. How long will the merchants of Neola and the farmers stand that kind of a margin?" This action is bottomed upon that publication, which it is alleged referred to plaintiffs, was false, scandalous, and malicious, and resulted in damage to plaintiffs and to their business. Defendant

admitted the publication of the article, but denied that it was false and scandalous or malicious. He also averred that the charges therein contained were practically true, and that it was published in good faith and for justifiable ends. He also pleaded that before publishing the article he made such inquiries as led him to believe that the charges therein were true, and that he published the same in good faith, honestly believing the same to be true and for justifiable ends. In another division of the answer he denied that the article referred to plaintiffs, and further pleaded that he did not know of the existence of plaintiff firm at the time he made the publication. Shortly after the action was commenced, and before it was brought on for trial, defendant offered to confess judgment in favor of plaintiffs for the sum of $6 and the costs accrued to that time. This offer was refused by plaintiffs, and the case went to trial, resulting in a verdict for plaintiffs in

the sum of $1. Thereafter judgment was rendered upon the verdict, but the costs were taxed to plaintiffs because of their refusal to accept the offer to confess. The appeal challenges some of the rulings on the admission of testimony and certain of the instructions given by the trial court.

For the purpose of showing actual, as distinguished from legal, malice upon the part of the defendant, plaintiffs undertook to show the market price of hogs at South Omaha, at Neola, and at the towns of Underwood and Minden, which towns were but a short distance from Neola, on the 13th day of October, 1903. In order to meet this showing, defendant was permitted, over plaintiff's objections, to show what the market was at Neola on that day, and what he was told by others regarding the prices being paid at that time. For the purpose of rebutting the inference of actual malice, we think this testimony was admissible. It was not admissible in justification, for the truth was not pleaded as a defense; nor was it admissible in mitigation of actual damages for three reasons: (1) Because it was not pleaded in mitigation; (2) the article did not purport on its face to be based upon anything save defendant's own knowledge; and (3) even if pleaded in justification, the testimony could not, under the authorities, be received in mitigation. But as testimony to the same point was offered by plaintiffs to establish actual malice, defendant was entitled to rebut the same by showing the actual market prices and his information regarding the same at the time he made the publication. A witness for defendant was asked as to what another firm engaged in buying hogs in Neola said was the market price of hogs at Neola on the 12th of October, 1903. Plaintiffs objected to this, and the court inquired of defendant's counsel if he expected to follow it up by showing that the information was imparted to the defendant. Upon being informed by counsel that he expected to do so, and that in his opinion the testimony was admissible any way, the trial court received the testimony. Counsel did not comply with his promise to show that defendant was informed of the matter, and plaintiff's counsel made no motion to have the testimony excluded. Such being the state of the record, plaintiffs have no legal ground for complaint. The order of the introduction of testimony lies in the sound discretion of the trial court, and the judge was justified in receiving the evidence upon the statement or promise of defendant's counsel. If it thereafter appeared that the testimony was inadmissible, plaintiff's counsel should have moved to strike it from the record. The conclusions so far reached regarding the introduction of testimony are sustained by the following, among other, authorities: Gaar v. Nichols, 115 Iowa, 223, 88 N. W. 382; Riech v. Bolch, 68 Iowa, 526, 27 N. W. 507; Beardsley v. Bridgman, 17 Iowa, 291; Hanners v. McClelland, 74 Iowa,

318, 37 N. W. 389; Marker v. Dunn, 68 Iowa, 720, 28 N. W. 38; Clifton v. Lange, 108 Iowa, 472, 79 N. W. 276.

Over plaintiffs' objections, defendant was permitted to show that before the publication of the article he never had had any trouble with either Dorn or McGinty, and, over plaintiffs' objections, was permitted to answer this question: "You may tell the jury what, if any, ill feeling there was upon your part towards either of the plaintiffs, or upon their part towards you, if you know." Under our rule this latter ruling, if not the former, was erroneous. Barr v. Hack, 46 Iowa, 308. See, also, Berger v. Freeman, 132 Iowa, 290, 109 N. W. 784. Counsel for appellee attempt to distinguish these cases, but in our opinion the Barr Case is exactly opposite.

2. Defendant's plea of mitigation has already been stated and it will be noticed that it is a narrow one. It is based upon alleged inquiries made by him as to the prices paid for hogs at Neola, and upon what should have been paid at that place, and the fact that he did not know of the existence of plaintiff firm. In instructing the jury with reference to these matters, the trial court gave the following: "Now if any or all of these matters are shown by the evidence, the defendant would be entitled to have said matters so shown considered in mitigation of any damages that you might award against him, and also as bearing upon the question of whether in publishing said article or not he acted with express or actual malice, the burden resting with the defendant to show said mitigating circumstances by the greater weight of the evidence. You will understand that the above matters, if shown, would not be a complete defense to the publication of said article, if same was published concerning the plaintiff firm, but are only to be regarded in mitigation of damages and as bearing upon the question whether the defendant in making said publication acted with express malice or not. If it appears from the evidence that, at the time the defendant published said article, he did not know of the existence of the firm of Dorn & McGinty, as a copartnership, said matter should be considered in mitigation of damages as above explained." We have already indicated our views with reference to the testimony admitted to sustain the plea interposed by defendant. Such testimony was admissible only to negative the thought of express or actual malice. It should not be considered in mitigation of the actual damages sustained, for defendant professed to speak of his own knowledge, and not from information derived of others. The trial court in its instructions told the jury that the testimony might be considered not only in its bearing upon the question of malice, but in mitigation of the actual damages sustained. In this there was manifest error. Marker v. Dunn, supra; Wallace v. Homestead Co., 117 Iowa, 348-356, 90 N. W. 835; Townshend on Slander & Libel, § 411; Buck

staff v. Hicks, 94 Wis. 34, 68 N. W. 403, 59 Am. St. Rep. 853; Williams v. Fuller, 68 Neb. 354, 94 N. W. 118, 97 N. W. 246; Rep. Co. v. Miner, 12 Colo. 77, 20 Pac. 345; Hinkle v. Davenport, 38 Iowa, 355; Sickra v. Small, 87 Me. 493, 33 Atl. 9, 47 Am. St. Rep. 344; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, 43 Am. St. Rep. 583; Thompson v. Powning, 15 Nev. 195. The latter part of the instruction relating to defendant's knowledge of the existence of the plaintiff firm is also erroneous for two reasons: First, because the testimony showed without conflict that defendant did know or believe that plaintiffs were in the business of buying hogs; and for the further reason that, even if he did not know, his lack of knowledge would not mitigate the actual damages sustained. At most, the testimony would tend to show want of malice-this, and this alone. The instruction should not have been given.

3. Part of the instructions relating to damages read as follows: "Damages in a case of this kind are of three kinds, to wit, nominal damages, actual damages, and exemplary damages. Nominal damages are given in cases where a wrong has been committed but no actual injury or damage has resulted to the person against whom the wrong was committed, and in such cases some small sum as one cent or ten cents is awarded as damages in order to carry the costs against the person committing the wrong. In this case, if you find that the article in question was published of and concerning the plaintiff firm of Dern & McGinty, but you believe from the evidence that no injury has resulted to the plaintiff therefrom, then you should award only nominal damages." Whilst it is no doubt true that nominal damages only may be awarded in libel suits, yet as a general rule the law presumes actual damages from the publication of an article libelous per se. Aside from this, however, the jury has nothing to do with the matter of costs, and it is better practice not to refer to it in the instructions. If it is referred to, the jury should not be misled regarding the matter. The instruction here given, in view of the offer made to confess judgment, was positively misleading, in that an award of the nominal damages stated would not carry costs. A jury, in such cases, is prone to return a compromise verdict, and it is well known that they frequently return their verdicts with an eye to the adjustment of the costs. It is common knowledge of the profession that in such cases juries more frequently then otherwise consider the matter of costs in making their awards. With this fact in mind, it is better to say nothing about the costs. But if reference is made to the matter, it should not be so stated as to mislead the jury. Under the English practice it was the custom of judges not to refer to the matter of costs even at the jury's request. See Townshend on Slander & Libel (4th Ed.) p. 517, and cases cited; Wilson v. Reed, 2 Fost.

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