No. 7754 | Ind. | May 15, 1881
This was an action of slander, brought by the appellee against the appellant. The complaint originally consisted of four paragraphs, but after the issues were formed the third and fourth were withdrawn.
It was averred in the first that the defendant spoke of and concerning the plaintiff, in the presence of Samuel Gf. Irwin and others, the following false and defamatory words: “I saw Lee Jones (meaning plaintiff) out in the woods, last fall a year ago, with Oscar Davis. She (meaning plaintiff) had her clothes up around her waist, and he (meaning said Davis) was so close to her (meaning plaintiff) that I could not see between them.”
In the second paragraph it is averred that the defendant, in the presence of John Canine and others, spoke of and concerning the plaintiff, in addition to the language set out in the first paragraph, the following false and slanderous words : “She (meaning plaintiff) is a woods whore, and I can prove it by John Wilkison.”
A demurrer for want of facts was overruled to each paragraph of the complaint, and an exception reserved. An answer in denial, with some special pleas that need not be further noticed, was filed.
The only objection urged to the second paragraph is, that there is no averment that Oscar Davis was not the husband ■of the plaintiff at the time the offence therein charged is imputed to her. However much force there may be in this objection, as applied to the language imputing an offence to the appellee with Davis, it can have none whatever when applied to the other charge contained in this paragraph. The demurrer was not limited to a single set.of words, but was general, and, therefore, if either set was sufficient, it was properly overruled. The second set was actionable per se, and it was immaterial whether the appellee was a married or an unmarried woman. The demurrer to the second paragraph was also properly overruled.
The appellant insists that the court erred in overruling the motion for a new trial, because the evidence was not sufficient to sustain it, and we concur with him in this conclusion. The evidence for the appellee, to prove the speaking of the words, is very brief, and is as follows :
James Hutchinson, the defendant, testified: “My name •is James Hutchinson, and I am the defendant in this cause
On cross-examination, he said : “After the Irwins were, sued by this plaintiff, one of them, Dr. Samuel G. Irwin,, came to me and wanted to know what I knew about her; I refused to tell him anything about what I had seen or what I knew, and I never, did tell Dr. Irwin, or any one else, what I had seen until I testified as a witness in that case in court; I live in this county, and was regularly served by subpoena to be. present as a witness on the trial of that cause, on behalf of defendants ; my testimony on that, trial was true ; I saw the. plaintiff and Oscar Davis just as I described in my testimony.”
John Canine testified : “My name is John Canine, and I live in this city ; I know the parties to this suit; during the; progress of the trial of the case of this plaintiff against the Irwins I was here, and one day was standing down on the front steps of the court-house, after Hutchinson had testified,, and I asked him if he was certain that she is the woman you saw out in the woods, and he said, ‘Yes ; I am certain.’ ”
On cross-examination, he said the conversation was a casual one of his own seeking, and the reason he made the inquiry was, that he had been waiting upon the plaintiff.
Samuel G. Irwin testified that the plaintiff had sued him and his wife for slander; that it was a different thing from the act testified to by the defendant; that he learned from
On cross-examination, he said : “At the time I first went; to Hutchinson to see what he knew, my case was pending im this court, and I was hunting up evidence for the trial; I had two or three talks with Hutchinson, and tried very hard, to get him to tell me what he knew, but he refused absolutely to tell me anything about it, and I determined to take-the risk of using him any way; I had him regularly sub- • posnaed and required his attendance as a witness; I heard his statement for the first time when he testified as a sworn:' witness upon the stand.”
The appellee testified that in September, 1876, she was at-her home, about twenty miles distant from the woods where-appellant testified that he had seen her and Davis. This-was all the evidence given in chief, and all tending to support the charge. Was it sufficient? We think not. • It will be observed that there was none at all to prove the speaking of the second set of words set out in the second paragraph of the complaint. The testimony of the appellant and of Samuel G. Irwin, the only witnesses who testified as to the speaking of the words, show that they were spoken as a witness, upon the trial of a cause, brought by appellee against-Irwin and wife for slander, and appellant claims that this-communication is absolutely privileged. The rule on this-question is thus stated in Townshend on Libel and Slander,, section 228: “The due administration of justice requires-that a witness should speak, according to his belief, the.
Applying these principles to the statement in question, it is obvious that the appellant incurred no civil liability in making it. It is shown that he was subpoenaed as a witness in an action for slander; that, in obedience to the process -of the court, he attended and testified as a witness upon the trial, and as a witness made the statement. This is all. It is not shown that his statement was impertinent and imma
There was no evidence whatever of any malice in making the statement, and without it there could be no recovery, even if tíre statement should not be regarded as absolutely privileged.
The appellee concedes that this statement is within the rule exempting the appellant from liability, but insists that the rule is an unwise one, not founded in reason, and ought, to be disregarded. We think otherwise, and, although requested, do not feel like reviewing the authorities that sustain it, nor stating the reasons that support it.
The appellee also insists that the statement made to John Canine is sufficient to support the verdict. We do not think so. The inquiry made by Canine of appellant was : “Are-you certain that she is the woman you saw out in the woods?” His answer was: “I am certain.” Assuming that the inquiry was about the appellee, the answer was: not slanderous. Standing alone, it was not actionable, nor did it prove any set of words declared upon. It could not be aided by the statement of appellant, made as a witness. Such statement, as we have shown, was privileged, and created no liability — none as a substantive cause of action — nor could it be used or considered for any purpose whatever. Without this statement, the answer to Canine proved nothing, and, as there was no other evidence tending to prove the speaking of the words, the evidence was insufficient to> support the verdict.. We are .not unmindful of the rulé, that'
For these reasons, we think, the judgment should be reversed.
It is therefore ordered, upon the foregoing opinion, that the judgment be, and it is hereby, in all things reversed, at the costs of the appellee, with instructions to .grant a new trial.