37 Ind. 35 | Ind. | 1871
This was a suit by the appellee against the appellant for libel. The complaint was in two paragraphs. There was a, motion to strike o.ut the first paragraph, because it was the same as the second, overruled, and exception taken; a motion to strike out parts of this paragraph overruled and exception; and a demurrer for want of sufficient facts to it as a whole, and to its several parts, was filed, overruled, and exception. But we need not notice these rulings, or the errors assigned thereon, because this paragraph was subsequently withdrawn, and the case, so far as it was concerned, dismissed. This was done after the evidence had been given, and the arguments of counsel had been made, but before the instructions of the court had been given to the jury, and was objected and excepted to by the defendant, and is assigned for an error. But we hold that it was no error. 2 G. & H. 118, sec. 99, and the authorities cited in the notes fully warrant this action of the plaintiff and the court.
The case of Ostrander v. Clark, 8 Ind. 211, is cited to sustain'the view of the appellant. That case decides that when an amendment is made, after the jury-is sworn,, which makes
The second paragraph of the complaint is as follows: Said plaintiff complains of said defendant,' and says that the plaintiff is, and for many years past has been, a resident and citizen of Sand Creek township, of said county; that John Cheek was township trustee of said township from April, 1864, to April, 1867; that during the war for the suppression of thedate rebellion, the President of the United States ordered a draft for men to serve in the armies of the United States, and that it became necessary for said township to furnish a quota of men, either by draft, volunteering, or hiring substitutes, or by otherwise obtaining credit to relieve said township from said draft; that for the purpose of collecting and disbursing money and means to clear said township from said draft, and for the relief of the drafted men of said township, the citizens of said township held a public meeting, on or about the 18th day of October, 1864, and elected and appointed the plaintiff said John Cheek, and six others, citizens of said township, as S^ommittae, and in behalf of the citizens of said township, to raise and expend money, and devise means for the purpose aforesaid; that thereupon said committee entered upon, and have ever since been engaged in, the discharge of their duties as such committee; that in the year 1864, said trustee, with the advice and consent of the board of county commissioners of said county, levied a tax on the property of said township, popularly known as the military tax, for the purpose, among others, of clearing said township from said draft, and reimbursing said committee the money borrowed by them for that purpose, also for the purpose of the relief of the drafted men of said township; that said tax was in part collected;
(A) That the defendant meant and intended by the above words to charge that the plaintiff while at the city of Indian
And in another part of said article there was and is other false, scandalous, malicious, defamatory, and libellous matter, to wit:
(3) “They” (meaning certain parties of whom the plaintiff was one) “were .on hand at the Republican convention, using their influence to induce the Republicans to nominate a man that they ” (meaning the plaintiff and others) “ could depend upon if elected, to cover up their ” (meaning the plaintiff and others) “ former rascality in township business. They” (meaning the plaintiff and others) “ have a bad record, one that will not bear bringing to light, and they ” (meaning plaintiff and others) “but use the whisky‘bugbear’ lor the purpose of directing attention from it:” (4)
(C) And the plaintiff avers that the above words of said libel were- composed and published by the defendant with the intent then- and there to charge certain members of said committee and the plaintiff, as one of said members, with having fraudulently swindled and defrauded said township, or the citizens thereof, of money raised for the pulpóse of clearing said township from said draft, and for the relief of drafted men of said township. (D)
And in another part of said article occurs the following words:
(5) ‘‘During draft times, these‘round heads’” (meaning members of said committee, of whom plaintiff was one, and others) “ did everything in their power to prevent the township from being taxed for the relief of drafted men, and partly succeeded on the last draft. However, when the tax was levied, they ” (meaning the plaintiff as one of the parties and others) “ had control of the- money and committeed and trusteed it pretty much up; at any rate the twenty-six drafted men who got a township order, each for one- hundred dot
(E) That said defendant thereby meant and intended, and was understood by the readers of said paper to charge said committee and said trustee with the crime of appropriating' to their own use, embezzling, and squandering moneys so said to have been committed to their control, and of corruption in'the discharge of the duties imposed upon them by their fellow-citizens of said township. (F)
And in another part of said article there was and is contained the following libellous words: -
(7) “They” (meaning plaintiff and other members of said committee) “have spent some weeks in company with prominent Black Republicans of the township to prevent Democrats from pursuing a business authorized by the law of the State and the platform of their party” (meaning the retailing of intoxicating liquors). “They” (meaning certain parties of whom the plaintiff was one) “ succeeded, by the absence of one of the commissioners ” (meaning Wren Grayson, one of the county commissioners of said county), “supposed to have been occasioned by the use of their dollars ” (8) (meaning money belonging to or controlled by parties of whom the plaintiff was one). (G) That said defendant meant and intended by said words to charge that certain parties, of whom the plaintiff was one, had been guilty of keeping Wren Grayson, one of the board- of commissioners of Decatur county, from attending at a meeting of said board, when it was his duty to have beea present, by bribing him with money to -prevent him from discharging his duties as such officer. (H)
And in another part of said article there was and is the following libellous matter:
(9) “ They ” (meaning certain parties, of whom the plaintiff was one) “succeeded last spring” (meaning the spring election, 1867) “in forcing one of their clan upon the people for trustee ” (meaning township trustee of said township), “and by his false promises to investigate these frauds of Cheek and others ”
(I) That by the above words the defendant meant and intended, and was understood to mean and intend, to charge the plaintiff and other parties, members of said committee, with having corruptly and fraudulently defrauded the said township, or the people thereof, out of mohey raised by taxation and otherwise, while in the discharge of their duties as such committee, and with having connived at and consented to the making of false promises by a candidate for township trustee, of said township, for the fraudulent purpose of concealing their said crime from the public, (j)
That said article in each and every allegation is wholly false and untrue, ap.d by means of its publication the plaintiff has been and is damaged and. prejudiced in credit and reputation in the sum of ten thousand dollars, for which sum he demands judgment, and for all other proper relief.
There was a motion made to compel the plaintiff to separate his cause of action into paragraphs, which was properly overruled. All the matter is rightly in one paragraph. The defendant moved the court to strike out of complaint above set out all the parts from figure I to 2; from 3 to 4; from 5 to 6; from 7 to 8; from 9 to. 10, and from letter A to B; from C to D; from E to F; from G to H; from I to J. This motion was overruled, and there was no error in this ruling. A demurrer for want of sufficient facts was filed to the complaint, as it appears above, and was properly overruled. The complaint is good in all respects.
It is argued that the innuendoes should have been stricken out, as they (make words actionable which are not so in themselves, and enlarge and change the ordinary meaning of the words in the libel, which is not the office of an innuendo. This is true, unless, as in this case, there is a colloquium and prefatory allegation of some extrinsic matter, or an explanation of the particular meaning of words and phrases. Ward v. Colyhan, 30 Ind. 395; Hays v. Mitchell, 7 Blackf. 117.
First General denial.
Second. That he admits that said plaintiff was a member of the committee appointed to relieve Sand Creek township of the drafts of its citizens into the military service of the United States, and acted as such committeeman during the .existence of such committee. He admits that a tax was levied in the years 1864 and 1865 to raise money to fill the quota of said township under said call,, but he denies that the funds raised by said taxes were at the disposal of said committee ; that he did write the article which in part referred to the plaintiff and from which the passages set forth in the complaint are extracts. He denies that the' innuendoes written in the complaint correctly state his intention and meaning, but that said article entire is as follows, viz.:
“From Westport—A plain' talking.- letter, in which NAUGHTY QUESTIONS ARE ASKED, ANDAN ANSWER EARNESTLY desired — Republicans tampering ’ with officials — BIRDS OF A FEATHER FLOCK TOGETHER—WHAT WENT WITH THE MONEY?
“ Editor Herald:—I wish a small amount of space-in your paper, for the purpose of informing your .readers of the condition of the Democratic party in this township. We have had heretofore from eighty to one hundred and fifty majority, which could easily be increased, were it not for some meddlesome individuals, who claim to be par excellence Democrats, equal in strength to the ‘Brick’ Pomeroy make.’ They are, howeyer, in faith ’like a certain clan of Democrats were in 1854. They wish to dictate to other people what business they shall follow, and what they shall eat and drink while pursuing the same. They are anti-whisky, anti-license, in short, Maine-law men, and from their actions we infer they have secret meetings, and if there was any dog-fennel, would be found wallowing in it equal to the dark lantern K. N.’s of that' year. Chief among them is our delegate to the
“They have tried hard to defeat the calling of a Democratic convention, but, failing in this, are determined to drag their whisky notions in the political contest for the nominations.
“ Already they have been canvassing and denouncing certain Democrats who have dared to announce themselves candidates without asking them, as ‘whisky Democrats,’ and as running on a whisky platform, and declaring, in advance of the nominations by the convention, that they cannot be elected if nominated.
“They have been for some time buttonholing the leaders of the opposition, and begging them to support their temperance candidate for justice, promising in return to support the balance of the Radical ticket. There is no doubt, from present indications, but that they have made up their minds, in case they fail to get one of their clan nominated, to bolt the nominations and support the Radical candidates. They were on hands at the Republican convention, using their influence to induce the Republicans to nominate a man that they could depend upon, if elected, to cover up their former rascality in township business. They have a bad record, one that will not bear bringing to light, and they
“If he had done this, the debt would not now be unpaid. But Mr. Cheek will say it was the fault' of the county treasurer. This is not true, for the treasurer was ordered by these would-be kings of Sand Creek township not to push Messrs. Cones, Elliott, and-Johnson. What their reasons were, we can only guess. Will Mr. Cheek also inform the people by what authority he acted in this tax collecting business, and whether or not he did it by authority of his being trustee ? If so, will he tell the people why he charged his full pay as trustee, and some four hundred dollars besides, for handling and squandering this military fund ? Mr. Cheek claims to be a good Democrat, of course, and gets very angry when any Democrat speaks of this matter, but the people have a right to judge a man by the company he keeps. He and Ai'mstrong, Owens, and others may be seen eight or ten days of each week caucusing around Westport with such specimens of the ‘manhood party ’> as Bill McCullough, Giddings, Boicourt;' Grayson, and others of that ilk. They have
“ They also scratched the ticket, and defeated one of our best men for justice of the peace; afterward, being ashamed of it, turned round and charged it Upon others, thus adding insult to injury. A nice set of ‘leaders.’ How long the party is to be cursed with them is the question here in Sand Creek.
[Signed] Fair Play.”
And said defendant says he wrote said article because it is true, and so much of it as asks for information was legitimate and pertinent to matters about which he, as a citizen of said township, had a right to inquire. He says that said communication was not written or published through malice, and he asks to be discharged with his costs.
Paragraph 3. The defendant, for answer to the plaintiff’s complaint, says that he admits the plaintiff was a member of the committee appointed to relieve Sand Creek township from the drafts then pending over said township, and continued such during its existence. He admits that a special military tax was levied in the years 1864 and 1865, to relieve said township of said drafts; but the defendant denies that said plaintiff, as one of said committee, had any power to
Taxes of Robert Cones, $102.15; taxes of Ludlow Johnson, in name of Jerusha De Armond, $63.35; taxes of Sanford and Nancy Elliott, $54.65; in all, $219.35, so far as known to said defendapt; that by the direction of said committee the taxes of a number of tax-payers were paid by notes not authorized by law; and said defendant says that the plaintiff counselled and connived at these illegal transactions, and claimed the right to do so as a member of said committee ; that the sum of $6,787.80, at least, was paid to the members of said committee by persons who were drafted, making an aggregate military fund of $24,074.40, when only $17,000 was the net amount paid for the recruits by which said township was relieved from said draft; that twenty-six orders of $100 each, were issued to the persons who were drafted, by the trustee of said township, all of which are unpaid and still outstanding, and held by citizens of said township, to pay which orders said levy was in part made.
That on the 20th day of February, 1867, John Cheek, who was trustee of said township from April, 1864, to April, 1867, and a member of said committee also, made the only report of his official acts as such trustee that can be found, or is now on the files at the auditor’s office of said county, by which it appears that said trustee claimed credit for $200 loaned the son of the plaintiff on the 21st day of July, 1866; for $100 loaned Amos Miller on the 29th day of July, 1866; for $229 loaned Lewis D. Owen, and $398.94 loaned William M. McCullough, another member of said committee, on the 26th day of October, 1866; and a further credit of $400 for
“Report of trustee of Sand Creek township, Decatur county, Indiana, to the county commissioners of said county, of the military fund belonging to said township, and the valuation of said township, and assessment for the years 1864 and 1865:
Valuation for 1864................................ $533,882.00
Assessment on each $100, 1.50.................’ 8,008.23
For 1865.................................................... 579,844.00
Assessment on each $100, $1.60..................... 9,277.50
Total assessment for 1864 and 1865...:.............. 17,285.73
Amount received......................................... 14,126.35
Delinquents.................................. 3,159.38
AMOUNT RECEIVED AT DIFFERENT TIMES.
April 24, 1865, received from treasury............... $4,982.57
October 19, 1865, received from treasury............ 1,272.55
May 4, 1866, received from treasury.................. 5)738-94
July 21, 1866, received from treasury................. 300.00
August 6, 1866, received from treasury............... 100.00.
August 8, 1866, received from treasury.............. 100.00
October 12,1866, received from treasury............ 29.00
October 12, 1866, received from treasury............ 398-94
October 12, 1866, received in notes and accounts from treasurer........................................... 576-35'
October 12, 1866; treasurer’s fees............. 20.00
February 16, 1868, received from treasury........... 500.00
Total received........................................$14,126.35
Amount paid out.................................... 14,064.57
Amount on hands.................................... $61.78.
AMOUNT PAID OUT AT DIFFERENT TIMES.
January 14, 1865, Greensburg bank note...........1 $300.00
April 24, 1865, 2d Greensburg bank note........... 2,700.00
October 19, 1865, O. Tousey, bank note............. 2,258.00
Februaiy 7, 1866, O. Tousey, bank note............. 1,000.00
March 22, 1866, Peter F. Hunter.......................1,012.00
May 4, 1866, John M. Watson......................... 3,304.70
April 24, 1865, treasury fees............................ 348.77
April 24, 1865, orders................................... 400.00
October 19, 1865, auditor’s fees for Í864....... 255.00
October 19, 1865, Morgan on delinquent............ 22.91
October 19, 1865, T. B. Peery.......................... 66.16
May 4, 1866, treasurer’s fees............................ 322.16
May 4, 1866, auditor’s fees.............................. 100.00
October, 1866, treasurer’s fees.......................... 20.00
July 21, 1866, loaned J. W. Armstrong.............. 200.00
July 29, 1866, loaned Amos Miller................... 100.00
August 6, 1866, loaned L. D. Owens................. 100.00
August 8, 1866, loaned L. D. Owens......;.......... 29.00
October 12, 1866, loaned L. D. Owens............... 29.00
October 26, loaned Wm. M. McCullough............. 398.94
October, received of treasurer in notes and accounts..................................................... 576.35
October, treasurer overpaid and refunded............ 25.00
October 26, interest on bank note..................... 27.00 .
October 26, stamp, Hunter note........................ .55
September 26,1865, stamps for township.......'..... .50
October 31, stamp on Peery............................ .50
October 20, 1864, John Cheek, books and stamp.. 12.30 January 27, 1865, stamp, Watson’s first note........ 1.65
March 6, 1865, Watson’s second note............... 1.85
March 6, 1865, stamp, Sefton’s second note........ 1.50
January 14, 1867; paid on Sefton’s note.............. 108.00
February 16, 1867, paid on Sefton’s note............ 500.00
Total amount paid out..........................,^$14,064.57
Dated February 20, 1867.
[Signed] John Cheek, Trustee.”
That on the 18th day of October, 1864, said John Cheek,' as such trustee, issued, without authority of law, sixteen orders of the following purport, viz.:
“ $1,000. ■ Trustee’s office for Sand Creek township, Decatur county, Indiana, October 18th, 1-864.
“This certifies that there is due, April 1st, 1865, Jacob F. Robbins, from this township, one thousand dollars, military funds, for value received, with ten per cent., payable as soon' as there may be funds on hand.
“John Cheek, Trustee Sand Creek Township.” '
And he delivered them to eight several payees, viz.: M. H. Robbins,- G. H. Robbins, and others, and that these items of credit, and these fees, and this mismanagement are meant' and intended in the alleged libellous matter quoted in the complaint as follows: “ However, when the tax was levied they had control of the money and committeed and trusteed it pretty much up;” that said plaintiff opposed and remonstrated against the levying of said tax, but when it was levied accepted the position of and acted as a member of said committee; that one Michael Taney had applied to the board of commissioners of Decatpr county for a license to retail spirituous liquors in less quantity than a quart at a time, and his application, together with a remonstrance' thereto, was pending before said board for trial at its ses- - sion which began on the xst Monday of March, 1868; that Wren Grayson, one of the members of said board of county • commissioners, who lived in said township, and was an active
That the alleged libellous,matter quoted, “they succeeded by the absence of one of the commissioners, supposed to have been occasioned by the use of their dollars,” was not intended to charge, nor does it charge, said plaintiff with the crime of bribery; that he was one of those who employed an attorney to resist the application of the applicant, and it was his efforts in' this behalf, and nothing more, that was charged to him in the article referred to by which they prevented said Taney from pursuing a business authorized by the laws of the State; that the plaintiff attended the Democratic state convention in the spring of 1868, as a delegate, and soon after he came home announced himself as “hell bent against the critter;” that he did take a big drink of brandy at Indianapolis at the convention; that this sudden change in his ■opinions was noticed by his acquaintances and gave rise to the surmise that he had taken too much at Indianapolis; that said plaintiff who had been an active participant in parfy politics in said township for years, was present at a Democratic convention and participated in its deliberations in the spring of 1867, when charges of corruption were made against those managing said military fund, in which Lewis D. Owens was nominated, the recognized personal friend of the plaintiff and who was subsequently elected to said office and held it till April, 1868; that these well-founded suspicions were still entertained by the citizens of said township ; •that when the Republican nominating convention assembled in said township, in the spring of 1868, said committee were
Paragraph 5. The defendant for fifth and further answer herein, says that he admits that he wrote the article, extracts from which are set out in the plaintiff’s complaint herein, but he says that said extracts, and the interpretation thereof given in the complaint, do not express its meaning; that said article entire is as follows: (For copy of article see paragraph 2 of this answer.) He says he wrote said article because it is true, and he hereby affirms the truth of so much of said article as is set out in the complaint. He says that the sum of $17,000 was all that was-paid for the credits procured by said committee, by which said township was relieved of the draft; that twenty-six orders of $100 each were issued by John Cheek, one of said committee, and trastee of said township, and delivered to the men drafted under said, call, and that to pay said orders and to relieve said township from said draft, said committee procured the trustee of said township to levy military taxes amounting to $17,286.60, which were passed to the tax duplicate of the county for collection, and at least $6,787.80 was paid to said committee as a military fund, making the sum of $24,074.40 of n fund under their control; that said committee purposely, fraudulently, and through favoritism caused the taxes of Robert Cones, Ludlow Johnson, and Sandford Elliott not to be collected, which taxes were legally assessed against them severally; that of said fund they paid or caused to be paid out $400 on illegal orders, which orders were known by them to be illegal at.that time; $1,304.90 on fees of officers for its collection, when no such fees were allowed by law, and never accounted for $6,000 of said fund; and that without authority they loaned $1,904.29 of said fund, for which they obtained credit in their settlement of account with the board of commissioners of said county; that said plaintiff received as payment of the
The plaintiff filed a motion to strike out the fifth paragraph of the answer, which was rightfully overruled. The plaintiff then filed separate demurrers to the second, third, fourth, and fifth paragraphs of the answer for want of sufficient facts to constitute a defence.
The demurrer was sustained to the second, third, and fourth paragraphs of the answer, and overruled as to the fifth paragraph. Proper exceptions were taken, and the sustaining the demurrers to the second and third paragraphs of the answer is assigned for error. Was sustaining these demurrers error?
It is true that in this State the truth of libellous matter may be given in evidence in justification. Const. Ind., art. 1, sec. 10; 2 G. & H. 110, secs. 86, 87. And, as a consequence, it may be pleaded; but how must it be pleaded ? is the question. These answers say that the defendant “wrote the article because it is true,” in the second paragraph, and in the third it says, “that so far as the plaintiff is concerned, it
The court allowed the plaintiff over the objection of the defendant, to prove by witnesses who and what they understood certain words in the published article to mean and refer to. This was allowable, and its correctness is sustained by numerous authorities. Smawley v. Stark, 9 Ind. 386; Justice v. Kirlin, 17 Ind. 588; Proctor v. Owens, 18 Ind. 21; Miller v. Butler, 6 Cush. 71; 1 Hilliard Torts, 305. The plaintiff had alleged, as a matter of fact, what their meaning was, and he had a right to prove his allegation.
There was a reply of general denial to the fifth paragraph of the answer, which made the issues under it and the general denial.
Trial by jury; verdict for the plaintiff for one hundred and seventy-five dollars; motion for new trial overruled, and judgment on the verdict.
We have examined this record and the briefs of both parties carefully, and we are satisfied that no error was committed in the court from which this case came, to the prejudice of the appellant, and as sec. 101, 2 G. & H. 122, says “ the court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect,” it is our duty to say that no substantialtor legal right of the appellant has been affected by the action of the court below.
The judgment is affirmed, at the costs of the appellant.
Petition for a rehearing overruled.