139 Ind. 465 | Ind. | 1894
The appellant sued the appellees for libel.
The two paragraphs of answer were, first, justification; and, second, that the publication was privileged.
,The fact appears from the record, and is conceded by counsel, that the trial and special finding of the court in favor of the appellees were upon the appellees’ first paragraph of answer. The action of the court, therefore, in overruling appellant’s demurrer to the second paragraph of answer was harmless. Miller v. Rapp, 135 Ind. 614; Evansville, etc., R. R. Co. v. Maddux, 134 Ind. 571; McComas v. Haas, 93 Ind. 276.
The sufficiency of the first paragraph of answer is urged in this court for the first time, and, not having been challenged in the lower court, it can not be attacked in this court. Chicago, etc., R. R. Co. v. Modesitt, 124 Ind. 212; Elliott’s App. Proced., sections 476-480.
A further question is made upon the sufficiency of the evidence to sustain the finding in favor of the appellees. Did the evidence justify the publication? The complaint alleged the publication, with editorial comment, of a complaint for divorce by a husband, in which he charged his wife generally with having at divers times and places frequently committed adultery with the appellant, and, especially, with having, at a particular time and place, committed adultery with the appellant.
One objection urged against the evidence is that it
“If the justification does not cover the slander to the full extent, the plaintiff will be entitled to recover for the excess not justified.” Tull v. David, 27 Ind. 377; Heilman v. Shanklin, supra.
The general charge of frequent acts of adultery, as a question of pleading, could only have been justified by allegations of specific acts, that the court might judge of their sufficiency and the plaintiff might be advised what he would be required to meet upon the trial. Johnson v. Stebbins, 5 Ind. 364; DeArmond v. Armstrong, 37 Ind. 35; Sunman v. Brewin, 52 Ind. 141; Mull v. McKnight, 67 Ind. 535; Funk v. Beverly, 112 Ind. 190; Sharpe v. Stephenson, 12 Ired. 348; Townshend Slander and Libel, 314.
Though the appellant is denied the right to question the sufficiency of the answer, it is the opinion of a majority of the court that he may urge to the sufficiency of the evidence, the same objection sought to be made against the answer, namely, that it is not broad enough to justify the charge published.
We have cases holding that evidence establishing a bad answer will not uphold a judgment for the defendant. Freitag v. Burke, 45 Ind. 38; Western Union Tel. Co. v. Fenton, 52 Ind. 1; Dorman v. State, 56 Ind. 454; McCloskey v. Indianapolis, etc., Union, 67 Ind. 86. See, also, Elliott’s App. Proced., pp. 404, 405.
There is, as appellant urges, an entire absence of evidence tending to support the specific charge of adultery
It is not necessary that we should pass upon the sufficiency of the evidence to establish the general charge, and as the case may again be tried, no good purpose would be subserved by an opinion upon that question.
The judgment of the circuit court is reversed.