*1 having record, appellant dispute, are in the without negli- They testified. in which decedent’s exhibit a situation gence, any established, furnish condi- if were would injury possible court has tion was -made This which his previously the acts held that under like circumstances proximate injuries. of his cannot to be decedent be held .cause proximate cause The existence the condition is not the negli- proximate subsequent injury, but the cause is the gent Babb, appellant. Wilson act of Slinkard v. App. 76, 85, 112 2d
Ind. N. E. 876. interrogatories to the therefore hold that the answers We general verdict conflict are not in irreconcilable with overruling appellant’s motion error in and there was no non obstante verdicto. verdict giving Although assigned appellee in the cross-error has merit, because see certain instructions with which we some pass opinion no thereon. of the result reached we Judgment affirmed. Prime, JJ., Faulconer,
Carson,
concur.
Reported in
Gibson January 20,251. Rehearing denied Filed December [No. 16, 1967.] denied November 1967. Transfer *2 Cohen, appellant. Gary, Max Sturman, Sturman, Sang Carney, and Klei-
M. Robert & Barce, Illinois, Chicago, man, Feldman, & all of Cornfield Kentland, Sammons, Vann, both of Barce & Sammons & appellees. all for brought by appellant, action below was J. —The
Prime, steelworker, of the United Steel Workers is a member who alleging announcer, part-time defamation America, and radio by appellees Kincaid and Smith character in one instance transmitting appellee South Shore facilities of the radio via Broadcasting Corporation, Broadcasting Colby Company, now the same an unnamed over and in another newscaster facilities. theories, proceeds
Appellant’s complaint on two amended legal paragraphs. court sustained in three The trial contained by appellees paragraphs all three submitted demurrers representa- individually, jointly as Kincaid and Smith by ap- America, and tives United Steel Workers Broadcasting Appellant pellee Company. refused South Shore over, accordingly plead judgment rendered appellees. favor of assignment
Appellant’s presents his contention errors been overruled. that the several demurrers should have legal paragraphs appellant-plaintiff’s The first two following words, founded resulting appellees from Kincaid and conversation between Broadcasting Smith, Company broadcast over the South Shore during purchased station time union. *3 briefly this “Charles Smith: to matter We want touch it a mem-
of this man ber of the to is Hoot Gibson who as we understand going Rights is to National Work Committee bring argument going up an we consider that he has fairly petty. understanding Yes, my “Orval Kincaid: it Charlie gentleman you attempting has to this mentioned been sell through- organizations himself to a of anti-labor number country in a in fact he told us himself local out the union and meeting, Charlie, all that he some tours over made driving country during strike and around the last steel the in someone’s and big visiting the steel centers all of Cadillac understanding he came that when back it is then our expense the United States in for his turned his bill he it he told us him- Corporation of course is ... Steel meeting pay company refused to the why in a local union self it company refused to understand and he couldn’t way working around. for all the them pay he it because was things Charlie, we are sample, some a That confronted going filed, has been a case There with. appealed him regular through It been channels. has by the Board on it will be heard associates or his Monday.” Legal against paragraph proceeds Kincaid and Smith individually, jointly representatives of the United uttering words, America,
Steel
for
Workers
legal
against
paragraph
Broad
II
the South Shore
casting Company
publishing
for
same. An identical
reaching
may
paragraphs
be made of both
discussion
sufficiency
determination of
of either
to withstand de
grounded
murrer,
on the same issue:
since
defamatory nature,
any,
complained
In
if
of the words
of.
dialogue
opinion,
our
between Kincaid and Smith was
nothing
appellant
per
imputed
not
It
Gibson
se.
agitation,
more than labor
has been held to be
Young (1904),
Railroad
libelous
se. Wabash
Co. v.
Hill,
1003; Montgomery
Ind.
69 N. E.
Ward v. McGraw
1944).
apply
(7th
If the not de matter an defamation is famatory damages per se, special must be App.
complaint.
Patton v. Jacobs
118 Ind.
E. 2d
reh. den.
trans. den.
78 N.
allegedly
The doctrine therein enunciated related to
letters,
reason to limit it
libelous collection
but we see no
Indianapolis News
that factual
See also Rose v.
situation.
papers,
(7th
1954).
paragraphs I and II is Gibson’s high allegations appear that union to attain office. No present employment. any impairment of he suffered Recovery of circumstances lie under this set should business, occupation. trade, injury present one’s *4 Damages pure speculation if the rule abe matter of would portion opinion Thus, that this are of the otherwise. we were which complaint the limitation words the is within of vague employment injurious future possibly new some give of will rise to a cause under either branch of action defamation. mind, appellant conclusion in turn to Gib
With this we theory subsequent reproduction son’s that the mechanical appellee’s
republication con over radio station of the gave permanence render versation it sufficient Assuming of words actionable within the tort libel. validity appellant’s contention, requirement still allegations damages special be contained exists complaint. If it is not valid remarks were instead Gibson, observing slanderous, appellant the well law settled fatally slander, concedes that his defective finding sufficiently pleaded special has that he without a damages damages above, special As therein. set out were inadequately defamatory pleaded, words were not justified sustaining trial therefore se. The court was legal paragraphs I and II. demurrers legal paragraph appellant’s com- third against plaint proceeds solely appellee Broad- South Shore casting following springing Company, from the uttered words by conveyed appellee’s over facilities: newscaster “The board of the Union executive United Steelworkers against charges upheld (USW) a member misconduct Gary, met in session its Ind. Local 2697. board closed charges against A.
to hear the B. Gibson that he ‘slandered’ (Our emphasis) local. members several during against upheld charge him was “The slander appealed to the executive local level. Gibson trial board at today.” down him turned slander was there- is that the crime of Appellant’s contention Indiana Burns’ imputed him. This crime defined Statutes, 10-3202. § unlawful a misde- shall be “Criminal slander. —It any false, any person to make meanor for slanderous regarding any person, other or to statement regarding any person, any repeat statement false
make or *5 which, true, subject if person prosecution would such offense, for a repeat any criminal toor make or false state- regarding any ment injures injure which or tends to person person name, such character, general either in reputation pursuit earning or the livelihood, Provided, of a That person uttering the such statements shall have had no good, grounds believing sufficient and reasonable for and on conviction considering true, the same to have been twenty-five shall be fined not less than ($25.00), dollars nor more ($500.00), than five hundred dollars to which may imprisonment .county jail added in the or Indiana any period sixty days. State Farm not to (60) exceed (Our emphasis) appellant’s theory statutory If followed, “any the other person” language would refer to the broadcast mem “several Assuming falsity of the
bers local.” the of the trans mission, purpose determining we must for which sufficiency complaint, we fail to see how local,” “several unamed, members otherwise would suffer imputation criminal sanctions. the false While of crimi activity clearly gives nal rise to a cause of action for defama imputation tion, reasonably must bear some close relation legislative to the paragraph definition of the crime. This appellant’s complaint suggest requisite fails to draw or .clarity. Similarly, the unidentified “several members of the hardly general “name, character, local” would have their reputation, earning pursuit or the livelihood” en dangered by appellant allegedly Gibson’s remarks. slanderous unnecessary
It is to decide what radio transmission should category, appellant’s be included in the libel or comment on argument that the member of a labor union should be allowed bring against organization, an action in tort since clearly grounds previ- insufficient on the ously discussed. Supreme recently Court of the United has de- States important case
cided two cases have relevance to the reasoning apropos us think it before here. We consider the general highest proposition our court on embraced before us. Kentucky, 16 L. Ed. 384 U.
The case of Ashton S. May 16, 1966, from cir- arose 2d decided S. Ct. concerning publication distribution of cumstances during Hazard, Kentucky, pamphlets a strike certain pamphlets of the Chief coal miners in were .critical Police, County the local news- and the owner of Sheriff favoring paper, accusing operators and of the mine them of *6 being opinion strongly opposed of the to the miners. The quoted part: is Court charged “The criminal libel’ indictment ‘the offense of ‘by publication publishing committed false and malicious a degrade injure’ persons.
which the named tends to three charged as The trial court ‘criminal libel defined that any writing peace, the calculated to of create disturbances corrupt any which, act, when public morals, or lead done, is indictable.’ charged ele- “The malice is essential court also that ‘an falsity ment of as this offense’ and well. affirming judgment Appeals of “The Court of of adopted the offense conviction a different definition of jury by court. given the trial criminal from that libel peace was no of the It ruled the element of breach that liability. longer imposing a constitutional basis criminal libel in crime of criminal It held Kentucky about another which common-law publication statement a ‘the false, malice.’ with Birmingham, in Shuttlesworth 382 U. “We indicated S. 87, broad construction constitutional, is tried and under an accused convicted a where of an make it un- Act which would appeal cannot be sustained conviction limiting which eliminates the unconstitu- a construction place trial took under of the Act as the tional features construction of the think Act. We unconstitutional principle applies here. Petitioner was tried and convicted understanding Kentucky according trial to the court’s ‘any writing law, the offense as calculated defined peace. .’ . . to create disturbances Appeals agree in the dissenters Court with “We English law . . since the common that: ‘. stated who provisions, criminal libel is inconsistent with constitutional Kentucky and since no the crime in case has redefined terms, must be made on understandable and since the law basis, a case to crime are case the elements of the so in- be enforced as a definite uncertain that it should not penal Kentucky.’ offense in Connecticut, “The case is close to Cantwell v. 310 U. S. 296, involving inciting crime of of the common-law conviction charged peace. breach of the The accused having played hearing public with place in a of Catholics religion attacking a phonograph their record reversing In known breach church. of said: ‘The offense we destroy- peace great variety conduct embraces a tranquility. ing menacing It includes public order and likely produce violent acts acts and words but analogous violence in . others. . . Here we have a situation great sweeping to a conviction variety under a statute in a general characterization, of .conduct under a and indefinite leaving judicial and a discretion in its the executive branches too wide application.’ Id., at 308. Chicago, “In Terminiello v. 337 U. we held S. unconsti- punished tutional an ordinance which as construed an ut- peace public terance as a breach of the ‘if stirs the anger, brings dispute, unrest, incites about a condition of Id., or creates a at set disturbance.’ aside the We .con- saying: viction “ vitality ‘The political civil institutions in our *7 society depends on free discussion. As Chief Justice Hughes it is that Jonge Oregon, 353, 365, wrote in De 299 U. S. only through exchange free debate and free of ideas government responsive to the remains will of the people change peaceful right speak is The to effected. freely promote diversity programs and to of ideas and therefore the is one of chief distinctions that sets us regimes.’ apart from totalitarian “ ‘Accordingly speech a function of free under our government system may dispute. of is to invite It indeed high purpose best its serve when it induces a condition unrest, of creates dissatisfaction conditions with as are, anger. people Speech pro- even stirs to is often challenging. may prejudices vocative and and It strike at preconceptions unsettling profund and have effects presses acceptance (Id., 4.)” it of an idea.’ at 214, Alabama, State S.
In the case of Mills v. U. of May the Su- 2d decided L. Ed. 86 S. Ct. position preme in reiterated its Court of the United States publishing speech. out This arose of the favor free case daily Birmingham Post-Herald, news- of an editoral in the urged Mills, paper, editor, E. written its James which government. people adopt mayor-council form of the to the charging complaint Mills was later arrested on a day he violated publishing on had the editorial election “to do crime section of makes it a the Alabama Code which any electioneering support of any votes in or to solicit ... any being on opposition proposition on or in to voted day being trial The the the election ... held.” on which ground court sustained demurrers to the abridged speech press statute freedom to the violation of the First Fourteenth Amendments Supreme The Constitution United States. Alabama Couxd; press “restriction, saying, the reversed the trial court everything considered, reasonableness,” is within the field of upon speech, “not an unreasonable limitation free which press.” includes free reversing Supreme Supreme Court,
In Alabama part: Court the United States said in through Amendment, applies “The First to which the States Fourteenth, ‘abridging prohibits freedom of laws speech, abridges press.’ question here is whether punish a press for a freedom State doing publishing newspaper an editor for no more than day urging people particular editorial on election vote a way point this out at once that the election. We should way power question extent of in no involves the a State’s polls regulate in order conduct in and around peace, there. sole reason order and decorum maintain charge the law that he wrote that Mills violated for the urged day published editorial on election and Birmingham an changing to cast their votes favor voters government. form of their may interpretations exist about differences “Whenever practically Amendment, universal there is *8 of the First agreement major purpose that a of that Amendment was protect governmental to the free discussion of This affairs. of course candidates, includes discussions of and structures government, forms government the manner in which operated operated, should be and all such matters re lating political processes. specifically- to The Constitution press, only selected newspapers, which includes not books, magazines, and but humble also leaflets and circu lars, Griffin, play impor see Lovell U. S. to an public press tant serves and was any role the discussion of affairs. Thus the designed powerful to as serve to antidote governmental power by abuses officials and as a constitutionally keeping chosen means for officials elected by selected to praise people responsible people all whom were right Suppression press serve. of the of the governmental agents or criticize and to clamor against change, contend for or all that this edi did, very agencies torial muzzles one the Framers thoughtfully deliberately of our Constitution selected improve society keep to rupt lishing our it free. The Alabama Cor providing penalties pub Practices Act criminal press editorials such one here silences the at a time when can be most effective. It is difficult to flagrant abridgment a more obvious and conceive guaranteed constitutionally press.” freedom of right freely upon topics discuss and comment general importance lightly regarded. interest and is not be expression,
Freedom of will curtailed when infringement upon rights clear another’s occurs. Such infringement present is not here. herein,
For the reasons out we set find that the court trial sustaining appellant- committed no error all demurrers to plaintiff’s complaint, judgment its is therefore affirmed.
Carson, J., concurs, Wickens, Faulconer, J., J., C. opinions. concur with
Concurring Opinion. Judges concur in the results obtained C, Wickens, J. — I opinions Prime and Faulconer in their herein. *9 by appreciation these for the illumination cast due
With subject defamation, I not find opinions of do on the whole any pleading para- complaint in a action to state cause of legal question separates us on the status graph No thereof. except Paragraph complaint as to III. others, in appellant there “slandered” The statement that my to ex- opinion impute resort fails to a crime without may, Justice Holmes trinsic facts. The word “slander” greatly vary and generally, color . . said of a word according and time to the circumstances content relegated to present time has been At the slander used.” category of a tort. Although practically unknown now. slander Criminal making a a 1921 statute slander our Code carries Criminal reported a under it. to find case I unable misdemeanor am thorough question any researcher would I other than a if might statutory crime in considered be that slander know say presently “slander” used would this As words state. produce impression an of a crime. does Paragraph alleged III to be defamation of I consider accusing unambiguous susceptible and clear and leaving action, no factual appellant therefore tortious question for trial. Opinion.
Concurring in the ma- reached J. —I concur in the result Faulconer, judg- opinion However, jority opinion. I am of the following affirmed for the trial court should ment reasons. judgment appeal entered defendants- from a
This an plead plaintiff-appellant over after refused to appellees when plaintiff’s demurrers to defendants’ sustained the trial court complaint. amended brought paragraphs
Plaintiff-appellant suit in three complaint paragraph complaint. first of amended The amended against alleged Smith, appellees, was Kincaid program appellees certain remarks made said while on sponsored by appellee, America, United Steelworkers appellee, over the broadcast radio station of Shore South Broadcasting Company, defamatory appellant. were against appellee, paragraph complaint second was Broadcasting Company, alleged South Shore that said appellee negligent failing script was to edit the and delete defamatory language referring appellant. therefrom against paragraph ap- third of amended was also pellee, Broadcasting Company, Shore South a certain news item broadcast over radio station of said appellee newscaster, appellant. its *10 by respective Joint and several demurrers filed the defendants- appellees ground on respective paragraphs that complaint the amended failed to a state cause of action were by sustained the trial court.
Appellees, argue Smith, Kincaid and that the remarks charged Paragraphs defamatory; in I II if are not that defamatory they and, defamatory are are not se therefore, special damages alleged; must be and that allegations damages. special Appellee, are insufficient to show name, Broadcasting Company,1 change South (by Shore Colby Broadcasting argues Company), the remarks al- leged alleged Paragraph Paragraph in II and the news item in 1) defamatory and, III of the if so, defamatory per and, therefore, damages special are not se alleged allegations must be and such are insufficient to show special damages.
Appellant argues both, by appellees, the remarks made Smith, alleged II, Paragraphs Kincaid and in I and and the alleged Paragraph III, in news item were broadcast over the by and, appellee-Colby therefore, radio station owned were and, necessary consequently, plead libel it was not appellee-Colby. 1. Hereinafter referred to as allegation damages and, special required, prove if its even damages special sufficient. was Paragraphs alleged upon remarks following colloquy II between are based consisted appellees, Smith, been made Kincaid and to have spon- appellee-Colby, program in over the radio station of a by appellee, of America: sored United Steelworkers briefly “Charles matter Smith: We want to touch on this is of a member of the National it this man Hoot we understand Gibson who as Rights to Work Committee going going bring argument we up an that he has fairly petty. .consider Yes, my understanding “Orval Kincaid: it Charlie you gentleman attempting this mentioned has been organizations sell himself to number of anti-labor throughout country and in fact he told himself us Charlie, meeting, union that he made some a local country during- all over the the last steel strike tours driving big around in someone’s Cadillac and and visiting understanding it is our steel centers and then all he came back he that when turned expense to the Cor- his poration his United States Steel bill . . he us of course it is . told himself meeting pay company refused to a local union why company refused he couldn’t understand way working for pay them all it because he Charlie, sample, some of the That around. a case things There has been confronted with. we are through regular It has going channels. filed, it is and it will be appealed or his associates him been Monday.” the Board heard *11 energy space expend Although parties vast both published over air- words the issue whether slander, broadcasting libel or ways station are of a radio unnecessary, my for a opinion tort, it is seprate a intriguing, appeal, that we decide this determination interesting on this question. few decisions complex and scholars, conflict, comments of as are the are in issue indeed, are, recommendations speculations and future
199 unique. refinement varied of methods the continued With prob- complex of mass communication is faced with a law lem, may impossible present the solution of under legal remedies.
It script has been held that .con radio broadcast from taining defamatory matter rather than slan constitutes libel Company Gibler v. der: Houston Post (Tex. (1958), Civ. City App.), Parker Co. v. Silver 377; 310 S. Charles 2d W. Crystal Barry Co. (1955), 605, 440; 142 2d v. Conn. 116 A. Kirkland Hartmann (1948), 839, 757, 759; 149 2d Neb. 32 N. W. v . Winchell 30, (1947), 296, 2d 171 296 Y. 73 N. E. N. 759; Hryhorijiv 575, A. L. (1943), R. v. Winchell 180 Misc. 31, 33; Wood, et al. 32, 123 Sorensen v. (1932), 45 2d N. Y. S. 348, 82, 1098; extemporaneous 82 Neb. 243 N. A. R. W. L. but interpolations, defamation, script, not in the if as actionable Locke v. Gibbons (1937), have been considered slander. Winchell, 877, Hartmann 193; 188, 164 299 Y. Misc. N. S. v. supra.
It has been intimated that libel the distinction between inapplicable broadcasting. Purcell slander to radio v. Westinghouse Broadcasting (1963), Co. 167, 411 Pa. 191 A. Simpson 662; Broadcasting American Th. v. 2d — Paramount Skyway 230, (1962), App. 873; Greer v. 106 Ga. 126 E. 2d S. Broadcasting Co. (1962), 98; 382, 256 C. 124 2d N. S. E. Congress Square 412, Hotel Co. (1954), 149 Me. v. Niehoff Broadcasting 219; Summit Hotel v. National 103 A. 2d Co. (1939), Co. Irwin 968; 336 8 Pa. A. 2d 124 A. L. R. 1127, 1129; Kelly v. Ashurst 158 Ore. 74 P. 2d 143, 145, R. L. 61 137 N. J. A. 2d 5 A. L. Hoffman 951, 954; S., Slander, Libel and (c), p. 2d 53 C. 121 J. § Harum, Remolding Defamation, Common Law B. A. A. (1963) ; Korbel, Broadcast: Journal Defamation Control, ; Federal (1963) Need B. A. A. Journal 771 Leflar, Radio TV Lia Strict Defamation —“Fault?’ *12 200 Remmers, ; Re (1954)
bility? 252 15 Journal Ohio Law St. Radio, L. Legislative 64 Harv. Trends in cent Defamation Broadcasting, Socolow, The Radio (1951); Law 727 Rev. pp. 851-52, (1939). 868 Vol. recognize
Although jurisdictions most other Indiana and slander, this libel and distinction common law between aboli- and its as archaic has been criticised scholars view following strongly The are a few tion is advocated. Lovell, legal concerning many issue. controversial works this Law, 15 “Reception” by the Common of Defamation Remolding Harum, Common (1962); 1051 Vand. L. Rev. supra; Defamation, 149 Law 49 A. A. B. Journal Lia- or Strict Leñar, Radio and TV Defamation —“Fault” Note, supra; bility? 15 252 Ohio St. Law Journal (1953). Pollard, 29 Dame Law. Notre reputation of the interest Defamation is an invasion good up name of the twin torts and made libel slander. among appears to confusion conflict
There be some determining special the decisions and when dam- scholars ages, stated, special injury, must or as sometimes be proven an for defamation. action “per “per law libel se” In the and slander the terms quod” used, abused, As have been misused and confused. by Prosser, stated defamatory face; publication may upon its “A be carry defamatory meaning only by
may ex- reason of is not the same trinsic .circumstances. distinction of itself defamation which actionable as that between and damage, proof special requires . . . that which this, no little confusion sometimes has There been Prosser, Torts, p. (3d results.” unfortunate §106, with ed. 1964). resulting any presently attempt confusion avoid In an usage terms, pur- previous inconsistent of these from “per “per opinion, se” pose the words and the words of this quod” reference to shall used with meaning of words. designate “defamatory per
The term se” shall be taken *13 defamatory imputation apparent words is on their whose face; is, defamatory them- that words which are in and of “defamatory per quod” The term be understood selves. shall only defamatory apparent to mean words whose character is circumstances; is, reason of lan- extrinsic facts and guage capable of which, defamatory face, its while meaning communicating defamatory cer- when taken with tain extrinsic facts and circumstances. generally agreed
It is are actionable without words allegation damage proof special of and when: Words,
(1) they slander, whether be in the form of or libel defamatory per per quod, impute which are (a) se or to another of punish- the commission an indictable offense by imprisonment; impute able (b) another loathsome disease; (c) injure office, profession, tend to another in his trade, calling; impute (d) unchastity or or business to a woman.
(2) which, in the form libel face, Words of on their with- out circumstances, say, resort to extrinsic or facts is to “per degrade se,” person, honesty, tend impeach another his integrity, reputation, bring hatred, or contempt, him into ridicule, or causes him to be shunned or avoided. words, slander,
All other form of which cannot be categories designated through fitted (a) (d) into above allegation only upon proof special actionable and dam- age or harm. agreement, however,
The decisions and are not in writers concerning words, form, only whether in libelous which are defamatory per quod allegation require proof special damage defamatory where .character of the words out- categories Prosser, Torts, side the four above set forth. 202 (3d Harper James, pp. 1964); ed. & 780-781-782
§ 5.9, (1956). Torts, pp. Law 373-74 § above, words, form, As if the libelous in are de stated famatory (per se) do not fit themselves but within through categories designated (a) more the above one allegation proof of (d), without are actionable 538; damages. Ind. special Gabe v. McGinnis Body Wayne App. Hicks Works v. Co. Ind. 382; Tracy App. (1898), 19 55 N. E. 2d v. Hacket Ind. E. 185. N. designated “majority” by jurisdictions
However,
in those
defamatory
“minority” by Harper,
Prosser,
where the
one of the above
character of the words does not fit within
categories
through
designated (a)
(d), and the
meaning
extrin
reference to
of the words
shown
damages
circumstances,
special
must be
sic facts and
then
App.
proven.
(1948), 118
Ind.
Patton
Jacobs
*14
Kelly
(Transfer denied);
362-63,
358,
Without de- are easily be that if the words the law to mistake could ap- defamatory imputation is, famatory se, per their damages themselves, special need be no parent words the if defama- proven, that the rule otherwise and in refer- tory meaning be determined of the can words however, rule, and circumstances. The extrinsic facts ence to simple. not that Words, form, not, whether in libel or slander which do face, impute crime, their to another disease, loathsome un- chastity, injure business, profession, another in his trade or may alleging proving still be actionable without special damages, if, pleading proving extrinsic facts and cir- cumstances, defamatory meaning such is shown. per may “Words not actionable se be made actionable averring such extrinsic facts as will show that were slanderous, intended to be averments must be applied and were so understood. These distinctly inducement, stated in the plaintiif by proper to the colloquim, with meaning correctly intended and understood in the set out (Emphasis supplied.) innuendoes.” Works v. Stevens 181, 184; Emig 76 Ind. Daum App. v. 1 Ind.
146, 151-152, 27
E.N.
defamatory
se,
“Where
words are not libelous
ambiguous
equivocal,
then extrinsic matter must be
objectionable
averred to
. . . used.”
show
character of the words
Kelly
State, supra (1900),
App.
24 Ind.
641-42,
famatory meaning to the pleader applicability communication or its plaintiif depends upon circumstances, extrinsic prefatory their existence in a avers statement called ordinarily ‘colloqui- the ‘inducement.’ In what is called the alleges um,’ publication he was made of and con- concerning cerning plaintiif and of and the extrinsic communication he forth sets verbatim .circumstances. explains meaning in the ‘innuendo’ words.” (Emphasis supplied.) *15 pp. (3d Prosser, 1964), Torts, 106, also: 766-67 ed. See § Jur., Slander, 236-241, pp. supra; Libel 214- 33 Am. §§ Slander, 82, pp. 221; E., Libel 487-89. 18 I. L. § enough say by out not to set the words and then It they mean. are intended to The innuendo can- innuendo what 204 meaning change or aver a fact. the natural the words McClarnon
This must be inducement. Rock v. done 417; 440; v. (1879), 66 Ind. Hart 95 Ind. Dean v. Miller Kelly supra (1900), 24 Coy 553; State, (1872), 40 Ind. v. Emig supra 257; Daum, App. 639, N. v. Ind. E. App.
Ind.
With the complaint, appellant’s Paragraphs tion of II of my opinion, for defamation in fails to a cause of action state alleged words or whether considered as libel slander. any per stretch could not se be considered other that on their nor considered with term. Neither face impute allegations complaint, of the amended do the words injure appellant a crime or Do tend to him in disease. occupation? Appellant alleges or trade, his business no ex- showing injure in trinsic that the words would so him facts only alleges trade, occupation. Appellant or that business his member of Local 2697 of the United he was a Steelworkers good standing; employed a for in steelworker America Company; employed part-time radio was as a National Tube Gary, Indiana; radio in announcer station WGRY good standing community. his he a had alleges imputation Appellant the words cheat, fraud, spy, he labor anti-union was a and a strike- allegation change enlarge upon cannot This breaker. meaning of the words. natural words, spoken “In order to either written or of or make engaged concerning person particular calling, ac- se, they spoken must written
tionable E., occupation.” or her person Libel and relation to his 18 I. L. 466; Slander, 26, p. 84, p. 492. § §
205 Appellant’s occupation employee was not as an officer showing standing the Union. There is no that his in the Union occupation, would affect his nor infer effect can we such alleged. from the facts broadcasting libel,
If were to be considered could words Paragraphs reasonably interpreted, set out in I II be in themselves, disgrace and of injure appellant’s reputa- bring contempt, tion or Appellant him into hatred or ridicule? alleges imputed person the words he “a be avoided, shunned, despised, public contempt held in and con- tumely.” forth, my
The opinion, not, words in set do them- selves, convey meaning alleged by appellant. If ex- trinsic sufficiently alleged facts and circumstances to show defamatory these by appellant, they characters would by allegation special damage be actionable under the law discussed above. Supreme
Our Hastings Court Pollock (1882), v. 88 Ind. 248, page 250, stated, at per charge “It is not slander se to fraud, a man say with or to of him that he is a .cheat or a swindler.” agitator
To call one a labor per is not libelous se. Wabash Young R. Co. (1904), 102, 162: Ind. 4 N. E. v. A., S., L. R. N. “In the circumstances of our times the dissemination of concerning information dispute facts of a labor must regarded
be
as within that area of free discussion that
guaranteed by the Constitution.” Thornhill v. Alabama
88, 102,
310 U. S.
84 L. Ed.
In denied), (Transfer the court said: N. E. 2d 348 131 “ actually damages from result ‘Special are such as therefrom, necessarily result wrong do not done but which implied by law, re and to be not are for that reason [Spe proven.’ . specially . . covered must be grow of an unusual damages always or out arise from cial may facts, to one be known peculiar state of other, as a natural and follow and not parties wrongful by reason act consequence proximate and of the existing in the conditions special circumstances Quote Fulk v. from case.” particular Aufderheide 399. App. 149, 112 N. E. Ind. 64 “ by the damage sustained means that loss ‘Special’ by specific loss, supported particular James, abe plaintiff must (1956). also: 5.14, p. 387 See Harper & evidence.” § (1933). Annot., 848 A. L. R. 86 special damages alleged, Where must be must be particularity. averred with language “If the per se, used in the article was not libelous if explanations extrinsic facts and were needed to how show injurious, allege plaintiffs would be required were special, specific damage publica that resulted from its (Emphasis supplied.) Enterprises,
tion.” Inc., (1964), Hambric Field v. App. 46 Ill. 2d 196 N. E. 2d supra Jacobs, This Court in Patton 118 Ind. App. 358, pages 362-63, (Transfer denied), at E. 2d N. allegation special damages held that there was no in the averring complaint “she suffered and continues to suffer great anguish pain, mental and humiliation and has become worry ill anxiety concerning and sick from injury good her name. .. .” opinion allegations am of the that the contained in Para-
graphs appellant’s I and II are de- scriptive general damages only, and are too nebulous con- cerning possibilities. future concerned, point,
We at this with defenses to they, suits for establishing them, defamation since or facts *18 appear plaintiff’s do not complaint on the face of amended and, therefore, are not available on demurrer. Henderson v. Press, Evansville 592, 598, App. Inc. Ind. 920, (Transfer denied). N. E. 2d Nor are we concerned with liability” the issue whether the doctrines of “strict versus apply “fault” should in the field of radio defamation. controlled, here, by are not We under the facts decision Supreme of the United States Court in New York Times Co. v. Sullivan 376 U. S. 11 L. Ed. 84 Ct. 2d S. prohibits “public 95 A. L. R. 2d official” recovering proves from for defamation unless he malice de by knowledge fined the court as “with that is was false or disregard with reckless of whether it was false or not.” Nor extending controlled at time are we this those decisions private project themselves into persons rule to who the Times they “public men.” public affairs to the extent that become alleged defamatory recorded that were The fact words holding give re-broadcast, support to which would some appellant. libel, not aid should be treated will defama- libel, have to be Even considered as such words would of the tory per one se if their fit within character did not categories through (d) of action (a) to cause above state a alleging damage. special without alleged forth I conclude words set in Para-
Since graphs plaintiff-appellant’s I and II of allegation only by damages, special were actionable damages alleged requirements do meet damages, special in the trial court committed no error sus- taining Paragraphs defendants-appellees’ I demurrers to complaint. plaintiff-appellant’s amended II of Paragraph plaintiff-appellant’s In III of amended com- alleged plaint words were contained a news alleged employee item to been an have broadcast de- station, item, fendant-appellee-Colby’s radio which news alleged, appellee from obtained United Press International. facts was A demurrer insufficient also sustained this paragraph. The item been news have broadcast : as follows “The executive of the board United Steelworkers Union charges against upehld [upheld] (USW) misconduct a mem- Gary, Local 2697. met ber of its Ind. board closed against charges hear the B. he A. Gibson that session ‘slandered’ against charge members of The slander several local. during upheld the local trial at level. him was appealed turned him to the executive board which
Gibson today.” down allegation damages same plaintiff-appellant’s Since Paragraphs Paragraph and II of his amended III inas sustaining Paragraph demurrer III complaint, *19 item, libel, if news if considered as the above not error was
209 defamatory per se, or, was not if considered as either libel slander, words, or themselves, in and of or considered facts, impute with extrinsic appellant crime, do not to the injure loathsome trade, disease him in his business or occu- pation.
Slander is a misdemeanor punishable, in Indiana on con- viction, by a fine may imprisonment to which be added any period exceeding days. 1, 60 1921, 140, Acts ch. § p. 366, 10-3202, Repl. Burns’ 1956 § .charging “Where defendant plaintiff utters words with punishable by an indictable imprisonment, offence general are, rule, words per aas deemed slanderous se. .” . . Seller v. Jenkins Greater v. Hogan (1884), 430, 431; 97 Ind. ex rel. v. (1891), App. 193, 195, 2 209; Ind. State 28 E. N.
Killigrew (1931), 397, 401-402, 202 Ind. 174 N. E. 74 v. Smith 631; Wyant A. R. (1840), L. 5 Blackf. 294. public offenses, except murder, may All treason and be v. State Rogers prosecuted by an indictment or affidavit. (1937), 593, 594, may 212 10 Ind. N. E. 2d 730. Misdemeanors v. prosecuted by an indictment. Miller (1896), State 440; Douglass 401, 404-405, et al v. 144 Ind. 43 N. E. State (1880), 72 Ind. necessary
It is not the words uttered should be such imputed as describe the offense them with technical accu racy. is, however, necessary It the words uttered should .convey imputa be such as to to the minds of the hearers an produce upon tion of crime. If the such words used are as to impression the minds of those who hear them an guilty although plaintiff crime, they actionable, of a are they fully may not describe an offense. And if the words altogether ordinary popular are taken such as their charge se. signification crime, then slanderous v. Scully Buscher (1886), 246, 247, E. 107 Ind. N. Seller v. Jenkins, supra 37; 430, 431; (1884),
N. E. 97 Ind. Wilson v. v. McCrory 170, 171; Waugh (1882), 86 Ind. Waugh Proctor Owens 580, 584; 47 Ind. *20 App. 21, 22; 363- v. Acton 38 Ind.
18 Ind. Short Bunting App. 505; (1903), 31 Ind. E. Ruble v. 71 N. Slander, 22, p. E., 458. Libel and 1041. 18 I. L. 68 N. E. § unambigu- language complained of clear and the is Where meaning construction, it is susceptible but one or ous and of actionable, duty it is the determine whether of the court to ambiguous, of per quod, se it is either but where interpretations, import, susceptible more doubtful of two or jury actionability ordinarily under decided its must Jur., Libel appropriate instructions from the court. 33 Am. James, of Slander, 294, p. 277; The Law Harper & § 765; Torts, p. Re- Torts, pp. 463-73; Prosser, §106, §5.29, Torts, 614, p. statement of § language ambiguous susceptible is of two “[I]f
meanings,
defamatory
not,
one
and the other
it
for the
is
jury
defamatory
to decide
or not it
used in
whether
Slander,
E.,
132, p. 530; Waugh
Libel and
sense.” 18 I. L.
§
Waugh, supra (1874),
580, 585;
Lee,
47 Ind.
Cosand v.
supra
App. 511,
(1894), 11 Ind.
Appellant’s argument, Paragraph total con- general unapplied facts, sists conclusions statements of supported by law references to the Restatement of Torts Newell, (once), (twice), Slander and Libel one Alabama de- cision, and one Illinois decision. is, course, court, appeal,
It axiomatic that this duty under no to search the in order to reverse the record court, duty present trial appellant and it is the argue reversal, requires each error he contends but argument support authority appli- such with citation of cation facts the case. entirety “The of appellant’s argument, brief, in his con _ *21 sists answered conclusions, accompanied by his stated un questions. upon appellant ap The burden is on
peal by record, by suggested to show error avenues investigation by by this court. It has been held Supreme that, Court and this court under said 2-17 Rule (e), appellant appeal must show harmful error argument cogent Wright v. and citation of authorities. (1958), 551; State 237 Ind. E. 2d Ecker N. 566, 567, App. 555, Fuchs 129 Ind. 159 N. E. 2d Baughman et 134.” Chadwick al. v. 134 Ind. et al. App. 305, 187 N. E. 2d 588. my appellant’s argument opinion, In as it concerns the sustaining error of the demurrer the trial Paragraph appellant’s court III of requirements (e), fails to meet the of Rule 2-17 Rules Supreme Court, and, therefore, any error in this action of the trial court been has waived. majority opinion
For the above reasons
concur with the
judgment
that the
should
affirmed.
Reported in
Note. —