I concur in a reversal because of the size of the verdict.
The principal ground upon which the majority bases a reversal is the trial court's ruling upon appellee's motion to strike appellant's plea of privilege. I think such ground is untenable and that appellant's amendment which pleaded privilege was properly stricken because it neither expressly nor impliedly admitted the speaking of the words charged. The plea was conditional upon the making of the alleged statements, which inthe same division was twice denied. Perhaps it would have been a sufficient admission if the plea had contained no denial but merely alleged that the speaking of the words was privileged, etc. This on the theory that each division of an answer must be complete in itself. Section 11117, Code, 1939. Consequently, a failure to deny would amount to an admission. Levitt v. New York L. Ins. Co., 230 Iowa 456, 460, 297 N.W. 888, 890.
The majority cites German Sav. Bk. v. Fritz, 185 Iowa 44, 109 N.W. 1008, and Nichols v. Eaton, 110 Iowa 509, 81 N.W. 792, 47 L.R.A. 483, 80 Am. St. Rep. 319, to sustain the holding that a defendant in a slander case can plead privilege without, for thepurpose of that defense, admitting, either expressly or at least impliedly, having made the statement claimed to be slanderous. Neither case is authority for such decision and, so far as I can find, there is no prior Iowa case which so holds. Both Prewitt v. Wilson, 128 Iowa 198, 205, 103 N.W. 365, and Simons v. Petersberger, 171 Iowa 564, 570, 151 N.W. 392, mentioned by the majority, sustain the trial court's ruling.
There are several slander or libel cases in Iowa, commencing with McClintock v. Crick, 4 Iowa 453, which hold that a plea of justification (that is, the truth) must admit the words charged in the petition. I think these cases are analogous. One such case is Cain v. Osler, 168 Iowa 59, 150 N.W. 17, Ann. Cas. 1918C, 1126, where there was also an attempted plea in mitigation that the words were spoken in good faith. This is analogous to a plea of privilege.
It is generally recognized in the law of slander that a plea of privilege is one in confession and avoidance. Many courts, including our own, have required that such plea admit, at least *Page 415 impliedly, the speaking of the words charged. 33 Am. Jur. 230, section 248; 37 C.J. 46, 47, section 385 (citing Prewitt v. Wilson, 128 Iowa 198, 103 N.W. 365). I think we should adhere to this recognized rule.
Furthermore, I think we should squarely pass on the question whether the words spoken are actionable per se, rather than merely to intimate they are not.
I am authorized to say that JUSTICES OLIVER and MITCHELL join in this special concurrence.