Loomis v. Des Moines News Co.

81 N.W. 790, 110 Iowa 515

• Court: Supreme Court of Iowa
• Decided: February 5, 1900
• Status: Published

Opinion

Per Curiam.

2 As we have just said, the court sustained the motion for a new trial on two of the grounds set up, and expressly overruled it upon all others. We may concede that upon such a record, the appellee not having appealed, we capnot inquire whether the motion might not properly have been sustained on other grounds than those specified by the trial court. Collins v. Brazill, 63 Iowa, 432. A different question would be presented if the court, instead of overruling the motion on all grounds but those it sustained, had made no mention of them. Voorhees v. Arnold, 108 Iowa, 77. - Only one of the grounds relied on by the trial court to support its action need be considered. This will show sufficient justification for the order made. We have not the evidence before us. The record here consists of the pleadings, instructions, certain special findings, and the motion for a new trial. One of the grounds assigned by the court for granting the new trial was error in the first instruction given the jury. The paragraph is as follows: “The plaintiff in this action, under the pleadings and evidence, will be entitled to recover, unless the defendant has shown by a preponderance of the evidence that the article complained of and set out in the foregoing statement was, under the circumstances under which it was published, privileged.” This instruction was duly challenged in the motion for a new trial. That it is incorrect seems manifest on its face. Paraphrased, the rule of law announced is that under the pleadings plaintiff is entitled to recover on the evidence, unless the evidence shows that he is not entitled to recover. To say the least, this is confusing. It is true, in other paragraphs of the charge the court told the jury that the occasion of this publication was privileged, and left them to say if the language used was in excess of the privilege. But it may well have been in doubt whether the jury was not misled by the first instruction.

3 We are reluctant to interfere with an order granting a new trial. A large discretion in such matters is lodged with the trial court. We only interfere in a clear case of abuse. Brammer v. Railway Co.

*(Iowa), 75 N. W. Rep. 668, and cases cited therein. Something is claimed, however, for the special findings to which we have referred in the statement of the case. Those findings are urged here as curing the error in the instruction. But, to have that effect, we must find they were correct, and this we are not able to do in the absence of the evidence. The presumption that exists in favor of the correctness of the trial court’s ruling leads us to conclude that the findings were not thought to have sufficient support in the evidence. See Barker v. Brown, 15 Iowa, 70; Finley v. David, 7 Iowa, 3; Arneson v. Thorstad, 72 Iowa, 145; State v. Drorsky, 73 Iowa, 484; Pierce v. Herrold, 83 Iowa, 764; Smith v. Yaeger, 85 Iowa, 706; Bank v. Boesch, 90 Iowa, 47. — Aeeirmed.

Granger, C. J., not sitting.

Note — Not to be officially reported. — [Reporter.