Opinion of the Court-CORSON, P. J. [19 S. D. It in Iowa, and there is no testimony to warrant a finding that this property was sold by Mr. Weller. There is no evidence to show that Mr. Stoy had any authority to or did make any sale of this property; consequently under the evidence as it stands, it is necessary that you should find that this property belonged to Mr. Weller at the time the levy was made." will thus be seen that the court instructed the jury distinctly that the personal property described in the complaint was owned by the plaintiff, Weller, at the time it was levied upon by the sheriff, and that it further instructed the jury that there was no evidence that Mr. Stoy had any authority to or did make any sale of the property. It is conceded by the appellant that the instruction, so far as it related to the authority of Stoy to sell the property, was clearly erroneous, as the plaintiff testified that Stoy had authority to dispose of the horses, and this evidence was not disputed; and he further concedes that, if there had been a substantial conflict in the testimony as to the ownership of the property, then the court's charge upon the subject of ownership would have been erroneous; but he contends that while there was some evidence tending to prove the sale of the property by Stoy, the agent, to Smith, the judgment debtor, it was not sufficient to support the verdict of the jury had they found that Smith was the owner. It seems to be the general rule that, where there is a conflict in the evidence, or the weight of the evidence or the credibility of the witnesses is involved, the case should be submitted to the jury, and where the evidence on a material issue is so conflicting that different minds might reasonably draw different conclusions or inferences therefrom, it is error for the court to direct a verdict. Bates v. Fremont, E. & M. V. R. Co., 4 S. Dec., 1904] Opinion of the Court-CORSON, P. J. D. 394, 57 N. W. 72; Dirimple v. Bank, 91 Wis. 601, 65 N. W. 501; Chicago Ry. Co. v. Olney, 71 Fed. 95, 17 C. C. A. 620; Houck v. Gue, 30 Neb. 113, 46 N. W. 230; Cain v. Gold Mt. Min. Co, 27 Mont. 529, 71 Pac. 1004; Rush v. Mining Co, 131 Ind. 135 30 N. E. 904; Milue v. Walker, 59 Iowa 186, 13 N. W. 101; Pope v. Whitcombe (Neb.), 93 N. W. 947; Smith v. Coe, 55 N. Y. 678. In Bates v. Fremont, E. & M. V. Ry. Co., supra, this court held: "Upon the trial, if the evidence leave the facts undisputed, and they are such that different conclusions or inferences could not reasonable be drawn from them, it becomes the duty of the court to declare their legal effect; but, if the facts are in dispute, or, if undisputed, they are such that different impartial minds might fairly draw different conclusions from them, they should be submitted to the jury;" and the same rule is applicable to any material issue presented by the pleadings or question of fact involved in the case. United States v. Tillotson, 12 Wheat. 181, 6 L Ed. 594. The learned circuit court, in granting a new trial, might reasonably have taken the view, upon re-examination of the evidence, that it had committed error in its charge to the jury, both in respect to the ownership of the property and the authority of Stoy to make the sale; and in taking that view and granting a new trial there was clearly no abuse of the court's discretion. The 'contention of counsel for appellant that this court will now weigh the evidence and determine there from whether or not there was sufficient evidence to support a verdict had it been in favor of the defendant, is not tenable, and it is not proper for this court on this appeal to express any opinion as to whether or not the evidence was sufficient to have justified such a verdict. 19 S. D.-4 Where error is shown, there is a presumption that it is prejudicial, and unless the appellate court can clearly see that the party has not been prejudiced by reason of the error, the presumption of prejudice will prevail. These views lead to the conclusion that the order of the circuit court granting a new trial should be affirmed, and the same is affirmed. BARRON V. SMITH. 1. The fact that a person's name was not mentioned in a publication alleged to be a libel on him does not render it the less libelous, so long as the publication would be understood to refer to him. 2. In an action for libel, the question whether the publication referred to plaintiff, whose name was not mentioned in it, is for the jury. 3. It is not necessary, in order to render a publication libelous, that it should charge any crime or public offense, inasmuch as Civ. Code, § 29, defines "libel" as a false and unprivileged publication, by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. 4. A publication alleged that a piano had been sold to a certain miners' union, which required great financiering, and that the agent thought it a great thing to bribe a committee or officers so as to sell a piano, and that such was the case Held, in an action for libel by the president and one of the trustees of the miners' union, that the publication imported that plaintiffs and others were bribed to purchase the particular piano, and was an actionable libel, without any showing of special damages. (Opinion filed Decemeber 21, 1904.) Dec., 1904] Opinion of the Court-CORSON, P. J. Appeal from circuit court, Lawrence county; Hon. W. G. RICE, Judge. Action by John Barron against Seth R. Smith. From an order overruling a demurrer to a complaint, defendant appeals. Affirmed. Thos. L. Redlon and Martin & Mason, for appellant. Joseph B. Moore, for respondent. CORSON, P. J. This is an appeal from an order overrul ing defendant's demurrer to the plaintiff's complaint. The action is for libel, and the only question presented is as to whether or not the complaint states facts sufficient to constitute a cause of action. The allegations of the complaint are, in substance, as follows: That the plaintiff is a resident of Lead City, and president of the Lead City Miners' Union, an organization containing about 1,000 members, and that the defendant is engaged in the furniture business in said city, and includes in said business the sale of pianos. That prior to the 1st day of June, 1903, the plaintiff, together with two other persons, trustees of the said Lead City Miners' Union, were authorized to purchase a piano for the use of said union, and during the month of May they purchased for the use of said union, from one A. McGill, a piano, for the stipulated price of $350, and made a full report thereof to the said union. That the plaintiff prior to the time mentioned in the complaint had always maintained a good reputation and credit, and had never been guilty of any fraud, deceit, or any of the offenses charged against him in the publication hereinafter set forth. That the usefulness of the plaintiff as president of the said union depended largely upon his good reputation and credit, Opinion of the Court-CORSON, P. J. [19 S. D. and upon the personal trust reposed in him by the members of said union and the public generally. That on the 1st day of June, 1903, maliciously intending to expose the plaintiff to hatred, contempt, ridicule, and obloquy, and to cause the plaintiff to be shunned and avoided, and maliciously intending to injure the plaintiff in his occupation and official position in connection with the said union, the defendant did maliciously compose and publish, over his own name, concerning the plaintiff, in the said Lead Daily Call, the false and defamatory matter following, to-wit: "Communicated. Editor Call: I notice in Friday's issue that 'Victory Had Crowned' a piano man, and that he had sold a piano to the Lead City Miners' Union. This was a great victory, and required great financiering, and the best piano made in the world. Well, the world has slipped a cog if that is the best in the world. I do not suppose that the man knows any better, anyhow. He thinks it a great thing to bribe a committee or officers so as to sell a piano. I know that was the case, and also that he tried to bribe a committee to sell a piano to the Degree of Honer. Furthermore, I have been told about one of the ex trustees to the Union getting that fine center table for his influence for a relation when he was in office. Mr. Editor, you may think it is a great accomplishment, but some call it bribery. Respectfully. S. R. Smith." That the plaintiff was thereby exposed to hatred, contempt, and ridicule, and was shunned and avoided by residents of said town of Lead and by the members of said union, and was injured in his occupation. That the defendant published said article with intent to charge this plaintiff with having accepted a bribe from said A. McGill, and being thereby influenced and induced to purchase said piano |