51 Ind. App. 365 | Ind. Ct. App. | 1912
— This was an action for slander. Appellee filed an answer of general denial to the complaint of appellant, and the issue thus formed was submitted to a jury for trial. After plaintiff had introduced his evidence and rested, defendant made a motion for a peremptory instruction in his favor. This motion was sustained, and the court thereupon instructed the jury in writing to return a verdict for defendant. A verdict was returned in obedience to this instruction, and the court rendered judgment thereon. Appellant saved his exceptions to the giving of the peremptory instruction, and filed a motion for a new trial, in which this was assigned as error. The court overruled the motion, and this ruling is assigned as error on appeal, and presents the only -ground relied on for reversal,
The evidence consists entirely of the testimony of three witnesses, and tends to prove that defendant spoke the slanderous words, charged in the complaint of and concerning plaintiff, in a bank at Orleans, Indiana, in the presence of Jonce Monyhan, Homer Fisher and Alfred Parish. The evidence further shows that defendant was at the time a member of the Lodge of Knights of Pythias, and that he lived in ITardinsburg, about twenty miles from Orleans; that he was in Orleans on that occasion in an attempt to prevent plaintiff from becoming a member of the Knights of Pythias Lodge at Orleans; that all the persons to whom the communication in question was made belonged to the order of Knights of Pythias, and that plaintiff was taking the work at Orleans, and had taken some of the degrees at the time the conversation in question took place.
Mr. Monyhan testified, in substance, as follows: Sometime the first of the year I had a conversation with defendant, McIntosh, there at our bank — the Citizens Bank of Orleans, Indiana. He came into the bank to talk with me concerning plaintiff, Cadle, taking the work of the “Pythian Lodge. ’ ’ He discussed the matter, but I do not remember all that was said. I remember that he said that plaintiff was not a man capable nor fit to become a “Knight”. He told me that he (Cadle) had been blackballed over at his town of Hardinsburg. He said he was over to try to keep our lodge from taking him in; that he was not a man that was fit to belong to the lodge; that he was a gambler and a thief. He said that Cadle, and one or two other men waylaid him and
The evidence further shows that none of the persons to whom this conversation was made was a member of any committee to investigate the fitness of appellant to become a member of the lodge, and that none of them asked Mr. McIntosh as to the character of Mr. Cadle or his fitness to become such a member, but that appellee introduced the subject. Appellee was informed, as shown by the evidence, that Albert Martin was on the investigating committee, and that the matter had gone too far; that appellant had already taken part of the work, and that appellee would have to take other action.
Appellant contends (1) that the facts disclosed by the evidence do not show an occasion of qualified privilege; (2) that a qualified privilege cannot be proven, or, if proven, cannot be considered as a defense unless specifically pleaded;
Judgment reversed, with instructions to grant a new trial.
Note. — Reported in 99 N. E. 779. See, also, under (2) 25 Oyc. 375; (3) 25 Oyc. 385, 523; (4) 25 Oyc. 398; (5) 25 Oyc. 480; (6) 25 Oyc. 444; (7) 25 Oyc. 524; (8) 25 Oyc. 523; (9) 25 Oyc. 445; (10) 25 Oyc. 420, 536; (11) 25 Oyc. 492; (12) 25 Oyc. 494; (13) 25 Oyc. 549. As to the law of slander when the words complained of are libelous ver se, see 116 Am. St. 804-816. Qualified privilege of communication between members of an association or of a private corporation, see 26 L. R. A. (N. S.) 1080.