
    Mrs. L. D. Roddy, Appellee, v. Gazette Company, Appellant.
    LIBEL AND SLANDER: Evidence — Articles Reprimanding De1 fendant. On the trial of a libel charge, plaintiff may not introduce in evidence other published articles by other newspapers reprimanding defendant for the original publication.
    WITNESSES: Cross-Examination — Opening Door for Receipt of 2 Testimony Otherwise Inadmissible — Libel and Slander. Testimony on cross-examination of the plaintiff in a libel charge that a newspaper other than defendant had published the named libel and had promised a retraction thereof, does not open the door to an admission of an article by such other newspaper reprimanding defendant for publishing the original libel.
    EVIDENCE: Opinion Evidence — Opinions as to Opinions. A witness 3,5 may not give his opinion as to what another person believed. So keld where plaintiff in a libel charge was erroneously permitted to show that the public in their conduct toward her led her to believe that they believed the article published was true— that they (the public) indicated to her (plaintiff) that they believed the article to be true.
    EVIDENCE: Opinion Evidence — Bodily or Mental Condition of Peril son. A nonexpert witness may not state that another looked to him “as if she was on the verge of a nervous breakdown.”
    EVIDENCE: Opinion Evidence — Opinions as to Opinions. 3,5
    DAMAGES: Pleading — Pecuniary Loss — Expenses. Damages not cov6, 8 ered by the pleadings are not recoverable, bo held where, in a libel charge, plaintiff was erroneously allowed to recover for medical expense and loss in occupation, without any claim therefor in the pleading.
    EVIDENCE: Hearsay — Libel and Slander. Evidence of what a 7 witness overheard other people say with reference to an alleged libel is inadmissible hearsay.
    DAMAGES: Pleading — Pecuniary Loss — Expenses. 6, 8
    TRIAL: Instructions — Porm, Requisites and Sufficiency — Confused and 9 Misleading Instructions — Libel and Slander. Instructions as to the nature of an alleged libel reviewed, and held confusing.
    
      Appeal from Linn District Court. — Milo P. Smith, Judge.
    Saturday, January 20, 1917.
    . Action at law to recover damages for an alleged libel published of and concerning the plaintiff. Defendant denied that it was actuated by malice in making the publication, pleaded that it published a retraction as soon as it learned of error in the original publication; that the article was published in good faith, upon information which it believed to be true; that the information contained in the article was gathered from the Chicago Tribune and published as an item of news; that plaintiff had two names, one stage and the other her real one, and that because of this a mistake was made through inadvertence. On the issues joined, the case was tried to a jury, resulting in a verdict and judgment-for plaintiff in tbe sum of $2,000, and defendant appeals.
    
    Reversed and remanded.
    
    
      Rickel & Dennis, Or. K, Thompson and Wm. Smyth, for appellant.
    
      R. S. Milner and G. II. Lamhack, for appellee.
   Deemer, J.

I. The defendant is a corporation engaged in publishing a daily newspaper in the city of Cedar Rapids. In an issue of its paper on or about June 26, 1910, it published the following:

“was this woman resident oe c. r.?

‘'SAPI-IRONIE LEBEAU ’ ARRESTED ON WHITE SLAVERY CHARGE.

“Story circulated that woman arrested in Chicago is Local Actress with Same Name, and who has appeared at Local Theatres.

“The Chicago Tribune of last Sunday contained the following item:

.“ ‘Two persons1, a woman and a man, yesterday faced charges of bringing girls to Chicago for immoral purposes.

“Mrs. Saphronie Lebeau, 2002 Wabash Avenue, charged with having brought Miss Adrienne Gringes, 18 years old, from Canada, was arrested by Federal authorities and arraigned before -United States Commissioner Mark A. Foote. Her ease was set for hearing June 24th and she was released on $1,000 cash bail. Battisti Pizzi was sentenced to one year in the house óf Walker for placing Ethel Archbold, a New York girl, in a resort at 407 South Clark Street. Both cases resulted from the fight headed by Clifford G. Roe against the traffic in girls in Chicago.

“is it a cedar rapids woman?

‘ ‘ There is a ■ persistent rumor about the city that the woman mentioned above is Saphronie Lebeau, a stock company actress, whose home is in Cedar Rapids when she is not on the road. ‘Lebeau/ it is of course needless to state, is a stage name. The real name of the Cedar Rapids Lebeau is Mrs. Roddy, she having been divorced from her husband several years ago. Mrs. Lebeau was in Cedar Rapids on Monday or Tuesday of this week, but previous to that time had been absent from the city for some time, so it is stated. She has appeared at different theatres in this city, having played a week with the Frank Long Stock Company at the People’s, and another week with a different company at Greene’s. She has also appeared at the moving picture shows and is said to be a character artist of some ability. If there are two persons of the same name, the charge of course does the Cedar Rapids woman a gross injustice.”

On the next day after the publication of this article, the defendant published the following retraction:

“LE BEAU is NOT MRS. RODDY.

“similarity oe names led to unfortunate error.

‘ ‘ Cedar Rapids woman has not been in Chicago — Her stage name is LaBeau not Lebeau.

“Mrs. Roddy of this city who was referred-to in an article in the Gazette yesterday in connection with an arrest in Chicago does not use the name Lebeau as her stage name. Mrs. Roddy’s stage name is La Beau. Mrs. Roddy has also been in Cedar Rapids' continuously and therefore could not have been placed under arrest in Chicago for any real or alleged crime. Mrs. Roddy has been taking care' of her mother who was injured in an accident some time ago; she has numerous friends in this city, where she has appeared as an actress of ability, and which has always been her home. The similarity of names led to. an unfortunate inference, though the Gazette stated if there were two persons of the same name the rumor is unjust to the Cedar Rapids woman. It is needless to say that the Gazette had not the-slightest intention of doing Mrs. Roddy an injustice. The correction therefore is gladly made.”

Notwithstanding, this action was commenced, with the result heretofore indicated. The trial was a long one, and 41 errors are assigned. We shall not notice all of these assignments, as to do so would accomplish no useful purpose. The main points relied upon relate to rulings on the admission and rejection of testimony, to the'instructions given and refused, the sufficiency of the testimony to support the verdiet, and the excessive nature of the verdict.

Plaintiff’s counsel offered as a part of her re-examination the following article, published in the Republican, a competing newspaper in the city of Cedar Rapids, as we understand it, the next day after the retraction was made in the Gazette:

“mrs. lebeau slandered.

“a cedar rapids paper makes a erigi-iteul

blunder.

“Connects Saphronia Lebeau of this City with a notorious woman arrested in Chicago.

“A serious injustice has been done by a local paper in connecting Mrs. Saphronia Lebeau of this city with an arrest for ‘White Slavery’ in Chicago. This paper has been asked to make statement for Mrs. Lebeau, and are consenting gladly and gladly does so, for it is always a serious matter to rob a woman of her good name.

“The Gazette stated there was a ‘persistent rumor’ to the effect that a Chicago woman with a slightly different name was the same as the Cedar Rapids woman. It was also stated that she had been in the city on Monday and Tuesday, but that ‘previous to that time had been absent from the city for some time,’ thus malting it possible to connect the two women.

“As a matter of fact Mrs. Lebeau has not been absent from the city ‘previous to that;’ she has been continuously in the city attending an invalid mother. That has been her work continuously for nearly two years. That is entirely different from being in Chicago engaged in the ‘white slave traffic.’ There are other aspersions on her character, such as that she was divorced from her husband some time ago. Her husband has been dead more than six years. The husband, Mr. Roddy, when alive, was an actor of prominence and had a reputation in Shaksperian roles, even Mrs. Roddy, whose stage name is Saphronia -Lebeau, is naturally very indignant about the aspersions cast upon her good name. Her neighbors in this city and those who know her are also greatly put out about it. There was no possible excuse for such a publication, unless it was the slight similarity in names. Mrs. Lebeau has been a devoted daughter at the .bedside of her mother, and has devoted all of her time to that work. The injustice that has been done her is of course very great.”

Manifestly, this testimony was irrelevant to any issue in the case, and extremely prejudicial. Appellee’s counsel, however, recognizing this fact, claim that the matter was brought out on the cross-examination of the witness, and that for this reason they were justified in offering it in testimony. We have examined the record on this matter with care, and the most we can find is that plaintiff, on cross-examination, stated that the Republican had published the same libel as the Gazette had, and that she- went to the Republican and was promised a retraction by that paper. It was perfectly proper for defendant, on cross-examination, to show that, about the same date, the Republican published the same libel, for the purpose of showing that the Gazette was not wholly responsible for the circulation of the libel, and also to inquire as to the retraction published by it, to show that this, too-, got into the hands of some people who might have been led to believe that there was no truth in the charge made by either paper. This is the substance of the only reference to the matter made by defendant’s counsel, and it is manifest that it did not open the door to the.introduction of the article published by the Bepublican, reprimanding the defendant for having published the article which is the basis of this libel. Defendant’s counsel are experienced practitioners, and it can hardly be assumed that they laid the ground for the introduction of such an article as the one complained of. Of course, the most experienced make mistakes, but we find nothing justifying the admission of the article.

II. Plaintiff, over defendant’s objections, was permitted to show that the public, by their conduct toward her, led her to believe that they believed the article published about ker to She was also permitted to say that they indicated to her that they believed it. Now, while it is true, when the question becomes material, that one may testify as to his own belief, he cannot testify as to what he believes other persons believe. That is purely an opinion, which should not be admitted in evidence. If the belief of other people becomes material, they are the ones to testify to that belief, and not some third person. Kersting v. White (Mo.), 80 S. W. 730; Warner v. Clark (La.), 21 L. R. A. (O. S.) 502; Craswell v. Pure Bred Cattle Commission Co., 148 Iowa 9. The conduct toward plaintiff of parties who, it is shown, read the libel and were influenced thereby may be shown, but a belief of the libelee regarding the belief of others, without a showing that this had some effect on their conduct, and that ihis conduct on their part grew out of the publication of the libel, is clearly inadmissible.

III. A son of the plaintiff’s was asked to state the effect of the same upon his mother. He answered that she looked to him as if she was on the verge of a nervous breakdown. The son was a nonexpert, and the question called for expert testimony. We doubt if any n _ _ _ _ * nonexpert should be permitted to state that another looked as if he or she was on the verge of a nervous breakdown. He might be permitted to state that another was nervous, or irritable, or hysterical, but to say that she was on the verge of a nervous breakdown calls for something different — something beyond the knowledge of a lay mind.

IY. This appears in the record: A witness by the name of Mrs. Fields was called for plaintiff, and the following is taken from the record:

“ Q- Yo11 may state whether or not the discussions that you heard with friends and with outsiders indicated a belief in the minds of the outsiders so discussing the subject, in the truth of the statements made by the Gazette? (Objected to by defendant as incompetent, and calling for the conclusion and opin- ' ion of the witness, and irrelevant and immaterial. Overruled. Defendant excepts.) A. There was a strong suspicion. (Defendant moves to strike out the answer as not responsive. The Court: You can’t do that. The plaintiff states that they adopted it as responsive. The Court: Motion overruled. Defendant excepts.) ’ ’

We are of opinion that the objection to the question should have been sustained. At any rate the witness’s answer should have been stricken out.

Y. Without any pleading of special damages, or any claim in the pleading for medical expense, plaintiff was permitted to show the amount of medical bills incurred by her. Under familiar rules, this was improper. The same remark may be made regarding the claim that plaintiff suffered in her occupation and trade as an actress. While there was some testimony that she was unable to get employment, or the employment which'she sought, she neither averred nor proved the damage which resulted therefrom. We find no testimony in the record as to her salary, or as to the value of time which she lost on account of the libel, and the court was in error in instructing that she was entitled to damages on account thereof.

VI. A witness by the name of Mrs. Doty was permitted, over defendant’s objection, to testify to certain remarks she overheard, made by other women regarding the plaintiff, to the effect that they had read the newspaper account, and that it was a terrible thing for plaintiff to do. Manifestly, this was no part of the res gestae, and was clearly hearsay. Another witness was permitted to testify as to hearsay statements made by parties in Des Moines, Iowa, and to detail his discussion of the matter with them. This was clearly inadmissible. The court indicated to counsel that he was not satisfied about the admissibility of the testimony, and that they would have to take their chances. ITe overruled the objections, however, and permitted the witness to answer. Other rulings on the admission of testimony are challenged, but they were either correct or are not likely to arise on a retrial, and we do not consider them.

VII. Defendant asked an instruction to the effect that plaintiff had suffered no damages for injury done to her business, or profession, and that this matter should not he considered by the jury. This was refuge(F For reasons already stated, we think it should have been given.

9. Trial : mstrucauisiies andrsüf fusedCanac£?ist?on:nifbeiSandC" slander. VIII. There is some confusion in the instructions regarding the nature of the alleged libel. In one, the court said that the Chicago Tribune article did not accuse plaintiff with the commission of a crime, and that the Glazette published this with nothing more than a comment upon whether or not plaintiff was the woman who was arrested; but same instruction the court left it to the jury to say whether or not the defendant intended to charge that plaintiff was, in fact, guilty of the offense, saying that, if the jury found this was the defendant’s intent, then it would be guilty of libel, and plaintiff would be entitled to damages. Nothing is said about whether the statement that plaintiff had been arrested and charged with the erime would or would not be libelous, save in a negative way. Other instructions complained of need not be noted, for they seem to be correct statements of the law, or are not challenged. Nor shall we discuss the size of the verdict, as there must be a retrial of the ease.

For the errors pointed out, the judgment must be, and it is, reversed, and the cause remanded for another trial. — ■ Reversed and remanded.

Gaynor, C. J., Weaver and Preston, JJ., concur.  