Clarke v. Jones

Seevers, J. 1. libel: pleading. The appellee claims that the matter stricken out constituted, under the old forms of pleading, the innuendo, an(l that cannot enlarge the meaning of the words. It is also insisted that this is true under our statute. Under the common law form of pleading the meaning or defamatory sense of the words was to be ascertained from the words themselves, the colloquium, and the extrinsic matters alleged in the pleading. The innuendo could point or fix the meaning of the words, but never enlarge it. If the words in their ordinary sense were not defamatory, but were in fact so used, the extrinsic matter showing they were so used should be stated in the pleading; and it was the office of the innuendo to point or fix the meaning, being aided therein by the colloquium or extrinsic matters pleaded. Certain it is, we think, the petition under consideration does not contain a sufficient statement of a cause of action at common law. It remains to be seen whether it is sufficient under the statute. The Code provides: “In an action for slander or libel it shall not be necessary to state any extrinsic facts for the purpose of showing the application to the plaintiff of any defamatory matter out of which the cause of action arose, or that the matter was used in a defamatory sense; but it shall [478] be sufficient to state the defamatory sense in which such matter was used, and that the same was spoken or published concerningthe plaintiff.” Section2681. There is no substantial difference between this section and the Revision, § 2928, which was construed in Kinyon v. Palmer, 18 Iowa, 377. In that case a demurrer was interposed to the third and ninth counts of the petition, which was sustained by the court below. There was no averment in the third count that the words were used in a defamatory sense, and it was held the demurrer was properly sustained. In the ninth count the defamatory sense of the words was stated, and it was held the demurrer thereto should not have been sustained. We understand the ruling in Kinyon v. Palmer to be, that as it is unnecessary to state a colloquium or any extrinsic matters in the petition, and the defamatory sense in which the words were used must be set forth. The necessary colloquium or extrinsic facts to support the defamatory sense alleged, or in aid thereof, is a question of proof and not of pleading. It is sufficient for the pleader, so far as the question before us is concerned, to set out the words and the defamatory sense in which used. If this be true, it logically follows that the petition in the case at bar cannot be assailed as defective; for until the plaintiff has introduced his testimony it is impossible to tell whether the words were used in the defamatory sense alleged or not. See, also, Swearingen v. Stanley, 23 Iowa, 115. REVERSED.