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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.]

dowa) 115 N. W. LOM. W. 10S6wers (lowa) 115 N. W. 10

Agnet v. Baldwin (Wis.) 116 N. W. 641. Horicon Drainage Dist., In re (Wis.) 116 N. Anderson v. Buchanan (Iowa) 116 N. W. 694. W. 16.

Hurd v. Northern Accident Co. (Mich.) 116 Beck v. Umshler (Iowa) 116 N. W. 138.

N. W. 977. Beloit, D. L. & J. R. Co. v. Macloon (Wis.) 116 X. W. 897.

Keller v. Harrison (Iowa) 116 N. W. 327. Bradley s. Burkhart (Iowa) 115 N. W. 597. Kirkpatrick v. London Guarantee & Accident Braun v. Mathieson (Iowa) 116 N. W. 789. Co. (Iowa) 115 N. W. 1107. Brown v. Honeyfield (Iowa) 116 N. W. 731.

Lahn v. Koep (Iowa) 115 N. W. 877. Collins v. Gleason Coal Co. (Iowa) 115 N. W. | Lonier v. Aun Arbor Sav. Bank (Mich.) 116 197.

N. W. 1088. Connell v. Iowa State Traveling Men's Ass'n

(Iowa) 116 N. W. 820. Crabtree v. Steele (Iowa) 115 N. W. 593. McCord v. Eastern R. Co. of Minn. (Wis.) 116 Crawford y. Standard Tel. Co. (Iowa) 115 N.

N. W. 845. W. 878.

McCutchen v. Roush (Iowa) 115 N. W. 903.

Maxou v. Gates (W’is.) 116 N. W. 758. Doak v. Briggs (Iowa) 116 N. W. 114.

Meirkord v. Helming (Iowa) 116 N. W. 785. Luggleby Bros. v. Lewis Roofing Co. (Iowa) 116 N. W. 711.

(lowa) | Ottumwa Mill & Construction Co. v. Manches

ter (Iowa) 115 N. W. 911. Fallon v. Vandesand (Wis.) 116 N. W. 176.

Rhodes v. Des Moines, I. F. & N. R. Co. (Iowa) Fleming v. Loughren (Iowa) 115 N. W. 506.

115 N. W. 503. Franzen v. Hammond (Wis.) 116 N. W. 169.

Roenfranz v. Chicago, R. I. & P. R. Co. (Iowa) Graham v. Detroit, G. H. & M. R. Co. (Mich.)

116 N. W. 714. 115 N. W. 993.

Schmidt v. Hauer (Iowa) 111 N. W. 966.

Slattery v. Slattery (Iowa) 116 N. W. 608. Hagenah v. Milwaukee Electric Ry. & Light State ř. Gage (Iowa) 116 N. W. 596. Co. (Wis.) 116 N. W. 813

State v. Lewis (Iowa) 116 N. W. 606. Hall v. Chicago, R. I. & P. R. Co. (Iowa) 116 State ř. Mitchell (Iowa) 116 N. W. 808. X. W. 113.

State v. Partipilo (Iowa) 116 N. W. 1049. Hardy v. Chicago, R. I. & P. R. Co. (Iowa)

State ex rel. Carroll v. Corning State Sav. 115 N. W. S.

Bank (Iowa) 115 N. W. 937.
Harney v. Chicago, R. I. & P. R. Co. (Iowa) Sturgis v. Slocum (Iowa) 116 N. W. 128.

115 N. W. SS6.
Helverson v. Chicago, R. I. & P. R. Co. (Iowa) Tebbs v. Jarvis (Iowa) 116 N. W. 708.

116 X. W. 699.
Hendrix v. Letourneau (Iowa) 116 N. W. 729. Walkup v. Beebe (Iowa) 116 N. W. 321,
Herbert v. Lloyd (Iowa) 116 N. W. 718.. Weien's Will, In re (Iowa) 116 N. W. 791.
Horicon Drainage Dist., In re (Wis.) 116 N. Whealkate Min. Co. v. Mulari (Mich.) 116 N.
WV. 12,

W. 360.
| Woodruff v. Langford (Iowa) 115 N. W. 1020.

State : Gage (Iowa) 114 116 N. W. 608:

4. & P. R. Co. (Iowa) w

See End of Index for Tables of Northwestern Cases in State Reports. 117 N.W.

(xix)t

THE

NORTHWESTERN REPORTER.

VOLUME 117.

| 6. LIBEL AND SLANDER — ACTIONS-EVIDENCE DORN & McGINTY et al. v. COOPER.* ! -ILL WILL.

In a libel suit evidence of ill feeling of (Supreme Court of Iowa. July 9, 1908.)

either party towards the other is not admissible. 1. LIBEL AND SLANDER - ACTIONS–EVIDENCE (Ed. Note.--For cases in point, see Cent. Dig. -ADMISSIBILITY-MALICE.

vol. 32, Libel and Slander, 285.) In a libel suit for having published in a ! 7. TRIAL-INSTRUCTIONS-Not BASED ON Evi. newspaper an article aileging that a pool existed DENCE. among persons engaged in buying hogs in N., In a libel suit, where the evidence showed among whom were plaintiffs, and that the deal without conflict that defendant knew or believed ers paid only 4.50 to 4.80 for hogs on a certain that plaintiffs were in a certain business, an inday, when the price paid in South Omaha was struction submitting that issue was erroneous. 5.1), in order to show actual malice, plaintiffs

(Ed. Note.-For cases in point, see Cent. Dig. undertook to show the market price of hogs at

vol. 46, Trial, $8 596–612.) South Omaha, at N., and at other near-by towns on the date mentioned in the published

8. LIBEL AND SLANDER – DAMAGES-AMOUNT article. Held, that to rebut the inference of AWARDED. actual malice defendant could show what the While nominal damages may be awarded market price was at N. on that day, and what

in libel suits, yet as a general rule the law he was told by others regarding the prices being

presumes actual damages from the publication paid at that time, and that he did not know of of an article libelous per se. the existence of plaintiffs' firm.

[Ed. Note.--For cases in point, see Cent. Dig, 2. SAME-PLEADING-JUSTIFICATION.

vol. 32, Libel and Slander, $ 352.] Defendant not having pleaded the truth as 9. SAME – ACTION – TRIAL – INSTRUCTIONS — a defense, his evidence was not admissible in

Costs. justification.

In a libel suit, where, because of an offer (Ed. Note. For cases in point, see Cent. Dig. made by defendant to confess judgment, an award vol. 32, Libel and Slander, $ 249.)

of nominal damages of one cent or ten cents 3. SAME – PLEADING-MITIGATION OF DAMA

would not carry the costs, an instruction that GES.

nominal damages are given where no actual inThe testimony was not admissible in miti

jury or damage has resulted to plaintiff, and in gation of actual damages not having been plead

such case some small sum as one cent or ten

cents is awarded so as to carry the costs against ed in mitigation, and the article not purporting on its face to be based upon anything save de

defendant, was erroneous because misleading. fendant's own knowledge.

10. SAME. [Ed. Note. For cases in point, see Cent. Dig.

It is the better practice in libel suits not to vol. 32, Libel and Slander, 88 250–254.]

refer to the costs in the instructions.

11. SAME-INJURY TO BUSINESS-PUBLIC HA4. Save.

TRED AND CONTEMPT. Even if the testimony were pleaded in jus

The Legislature, by enacting Code, 88 5060tification, it could not be received in mitigation

5062, making pools and combinations to regulate of actual damages.

or fix the price of any commodity a 'crime, deEd. Note.-For cases in point, see Cent. Dig. clared the public policy of the state, though the Pol. 32, Libel and Slander, $ 254.]

statutes be unconstitutional because of lack of 5. APPEAL AND ERROR – REVIEW - HARMLESS

uniformity in operation or of varying degrees

of punishment, and the publication of an article ERROR-ORDER OF PROOF. In an action for libel for having published

charging persons with effecting a pool or coman article alleging that a pool existed among

bination is libelous per se, as tending to expose dealers in hogs in N., among whom were plain

them to public hatred or contempt and to intiffs, and that the dealers paid on a certain day

jure their business or trade, since the law of only 4.50 to 4.80, when the price paid in South

libel must keep pace with public opinion as reOmaha was 5.80, where defendant was allowed

flected in the public prints as well as in legislato ask a witness as to what another firm buying

tion. hogs in N. had said the market price was there

[Ed. Note.--For cases in point, see Cent. Dig. on that day on the assurance of counsel that

vol. 32, Libel and Slander, 88 1-9.] he would follow it up by showing that the in

Appeal from District Court, Pottawattamie formation was imparted to defendant, which he did not do, and plaintiffs did not thereupon move

County; A. B. Thornell, Judge to strike the evidence from the record, they cannot Action to recover damages for libel. Trial complain of its admission on appeal, since the or to a jury. Verdict for plaintiffs in the sum of der of introducing testimony rests in the discretion of the trial court, and the judge was justified in

$1. Judgment on the verdict and against receiving the evidence rpin th pr mise of counsel.

plaintiff for costs. Plaintiff's appeal. Re

versed. *Rebearing denied.

117 N.W.-1

John P. Organ, for appellants. Reed &, the sum of $1. Thereafter judgment was ren. Robertson, for appellee.

dered upon the verdict, but the costs were

taxed to plaintiffs because of their refusal DEEMER, J. A. A. Dorn, one of the to accept the offer to confess. The appeal members of plaintiff firm, was a competitor challenges some of the rulings on the adof defendant in the general merchandise busi- mission of testimony and certain of the inness in the town of Neola, Pottawattamiestructions given by the trial court. county. He was also engaged with J. E. For the purpose of showing actual, as disMcGinty in the business of buying live stock. tinguished from legal, malice upon the part In the town of Neola there was published a of the defendant, plaintiffs undertook to show newspaper known as the “Reporter," and the market price of hogs at South Omaha, at defendant had a half page of this newspaper Neola, and at the towns of Underwood and reserved for advertising purposes. Defend- | Minden, which towns were but a short disant composed and had printed in the Re tance from Neola, on the 13th day of October, porter the following upon the half page re 1903. In order to meet this showing, defendserved by him: “Flour. Flour we bought | ant was permitted, over plaintiff's objections, two cars of Marshall's Best Flour four to show what the market was at Neola on months ago and sold them and bought two | that day, and what he was told by others remore and have about sold them. We buy garding the prices being paid at that time. flour to sell, not to carry through four of For the purpose of rebutting the inference the hottest months in the year, May, June, of actual malice, we think this testimony was July and August. I would advise a close admissible. It was not admissible in justiinspection of flour carried through these fication, for the truth was not pleaded as a hot months. I would sell it for anything I defense; nor was it admissible in mitigation could get and invest it in hogs—something of actual damages for three reasons: (1) that I could sell. The hog business is better Because it was not pleaded in mitigation; than the flour business because hogs will (2) the article did not purport on its face to always sell at a good big profit. We are be based upon anything save defendant's own thinking of going into the hog business our knowledge; and (3) even if pleaded in justifiself and see what effect it will have on the i cation, the testimony could not, under the nice little pool that exists since our friend authorities, be received in mitigation. But Mr. Osborn left this market. We have no- | as testimony to the same point was offered ticed that Neola has changed from one of by plaintiffs to establish actual malice, de the best hog markets in the whole country fendant was entitled to rebut the same by to one of the most bummy. My advice to the showing the actual market prices and his merchants is to immitate Underwood and information regarding the same at the time place a buyer here to pay what the stuff is | he made the publication. A witness for deworth. The best grade of hogs sold for 5.80 fendant was asked as to what another firm in So. Omaha Oct. 13 with the Neola market engaged in buying hogs in Neola said was the from 4.50 to 4.80. How long will the mer market price of bogs at Neola on the 12th chants of Neola and the farmers stand that of October, 1903. Plaintiffs objected to this, kind of a margin?” This action is bottomed and the court inquired of defendant's counsel upon that publication, which it is alleged re if he expected to follow it up by showing ferred to plaintiffs, was false, scandalous, that the information was imparted to the and malicious, and resulted in damage to defendant. Upon being informed by counsel plaintiffs and to their business. Defendant that he expected to do so, and that in his admitted the publication of the article, but opinion the testimony was admissible any denied that it was false and scandalous or way, the trial court received the testimony. malicious. He also averred that the charges Counsel did not comply with his promise to therein contained were practically true, and show that defendant was informed of the that it was published in good faith and for matter, and plaintiff's counsel made no mojustifiable ends. He also pleaded that before tion to have the testimony excluded. Such publishing the article he made such inquiries being the state of the record, plaintiffs have as led him to believe that the charges therein no legal ground for complaint. The order were true, and that he published the same in of the introduction of testimony lies in the good faith, honestly believing the same to be sound discretion of the trial court, and the true and for justifiable ends. In another di judge was justified in receiving the evidence vision of the answer he denied that the arti upon the statement or promise of defendant's cle referred to plaintiffs, and further pleaded counsel. If it thereafter appeared that the that he did not know of the existence of testimony was inadmissible, plaintiff's counplaintiff firm at the time he made the publica sel should have moved to strike it from the tion. Shortly after the action was commenc record. The conclusions so far reached reed, and before it was brought on for trial, garding the introduction of testimony are defendant offered to confess judgment in fav sustained by the following, among other, auor of plaintiff's for the sum of $6 and the thorities: Gaar V. Nichols, 115 Iowa, 223, costs accrued to that time. This offer was 88 N. W. 382; Riech v. Bolch, 68 Iowa, 526, refused by plaintiffs, and the case went to 27 N. W. 507; Beardsley V. Bridgman, 17 trial, resulting in a verdict for plaintiffs in Iowa, 291; Hanners v. McClelland, 74 Iowa, 318, 37 N. W. 389; Marker y. Dunn, 68 Iowa, staff v. Hicks, 94 Wis. 34, 68 N. W. 403, 59 720, 28 N. W. 38; Clifton v. Lange, 108 Iowa, Am. St. Rep. 833; Williams v. Fuller, 68 Neb. 472, 79 N. W. 276.

354, 94 N. W. 118, 97 N. W. 246; Rep. Co. Over plaintiffs' objections, defendant was v. Miner, 12 Colo. 77, 20 Pac. 345; Hinkle v. permitted to show that before the publica Davenport, 38 Iowa, 355; Sickra v. Small, tion of the article he never had had any 87 Me. 493, 33 Atl. 9, 47 Am. St. Rep. 344; trouble with either Dorn or McGinty, and, Callahan v. Ingram, 122 Mo. 355, 26 S. W. over plaintiffs' objections, was permitted to 1020, 43 Am. St. Rep. 583; Thompson V. answer this question: "You may tell the jury Powning, 15 Nev. 195. The latter part of what, if any, ill feeling there was upon your the instruction relating to defendant's knowl. part towards either of the plaintiffs, or upon edge of the existence of the plaintiff firm is their part towards you, if you know." Under also erroneous for two reasons: First, beour rule this latter ruling, if not the former, cause the testimony showed without conflict was erroneous. Barr v. Hack, 46 Iowa, 308. that defendant did know or believe that See, also, Berger v. Freeman, 132 Iowa, 290, plaintiffs were in the business of buying 109 N. W. 784. Counsel for appellee attempt hogs; and for the further reason that, even to distinguish these cases, but in our opinion | if he did not know, his lack of knowledge the Barr Case is exactly opposite.

would not mitigate the actual damages sus2. Defendant's plea of mitigation has al tained. At most, the testimony would tend ready been stated and it will be noticed that to show want of malice--this, and this alone. it is a narrow one. It is based upon alleged | The instruction should not have been given. inquiries made by him as to the prices paid 3. Part of the instructions relating to damfor hogs at Neola, and upon what should have ages read as follows: "Damages in a case been paid at that place, and the fact that he of this kind are of three kinds, to wit, nominal did not know of the existence of plaintiff damages, actual damages, and exemplary firm. In instructing the jury with reference damages. Nominal damages are given in to these matters, the trial court gave the fol cases where a wrong has been committed lowing: “Now if any or all of these matters but no actual injury or damage has resulted are shown by the evidence, the defendant to the person against whom the wrong was would be entitled to have said matters so committed, and in such cases some small sum shown considered in mitigation of any dam- | as one cent or ten cents is awarded as damages that you might award against him, and ages in order to carry the costs against the also as bearing upon the question of whether person committing the wrong. In this case, in publishing said article or not he acted with if you find that the article in question was express or actual malice, the burden resting | published of and concerning the plaintiff firm with the defendant to show said mitigating of Dorn & McGinty, but you believe from circumstances by the greater weight of the the evidence that no injury has resulted to evidence. You will understand that the the plaintiff therefrom, then you should above matters, if shown, would not be a com- | award only nominal damages." Whilst it is plete defense to the publication of said arti no doubt true that nominal damages only cle, if same was published concerning the may be awarded in libel suits, yet as a genplaintiff firm, but are only to be regarded in | eral rule the law presumes actual damages mitigation of damages and as bearing upon from the publication of an article libelous per the question whether the defendant in mak se. Aside from this, however, the jury has ing said publication acted with express malice nothing to do with the matter of costs, and or not. If it appears from the evidence that, | it is better practice not to refer to it in the at the time the defendant published said arti instructions. If it is referred to, the jury cle, he did not know of the existence of the should not be misled regarding the matter. firm of Dorn & McGinty, as a copartner The instruction here given, in view of the ship, said matter should be considered in offer made to confess judgment, was positivemitigation of damages as above explained.” | ly misleading, in that an award of the nomWe have already indicated our views with inal damages stated would not carry costs. reference to the testimony admitted to sus A jury, in such cases, is prone to return a tain the plea interposed by defendant. Such compromise verdict, and it is well known testimony was admissible only to negative that they frequently return their verdicts the thought of express or actual malice. It with an eye to the adjustment of the costs. should not be considered in mitigation of the It is common knowledge of the profession actual damages sustained, for defendant pro that in such cases juries more frequently fessed to speak of his own knowledge, and not then otherwise consider the matter of costs from information derived of others. The in making their awards. With this fact in trial court in its instructions told the jury | mind, it is better to say nothing about the that the testimony might be considered not costs. But if reference is made to the matonly in its bearing upon the question of mal ter, it should not be so stated as to mislead ice, but in mitigation of the actual damages the jury. Under the English practice it, was sustained. In this there was manifest error. the custom of judges not to refer to the matMarker v. Dunn, supra; Wallace v. Home- ter of costs even at the jury's request. See stead Co., 117 Iowa, 348–356, 90 N. W. 835; | Townshend on Slander & Libel (4th Ed.) p. Townshend on Slander & Libel, $ 411; Buck- | 517, and cases cited; Wilson v. Reed, 2 Fost.

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