21 Ind. App. 55 | Ind. Ct. App. | 1898
Appellant sued appellee for damages for an alleged libel. Upon issues formed, a trial resulted in appellee’s favor. The errors' assigned are that the court erred in overruling the respective demurrers to the amended second and the third paragraphs of answer, and in overruling appellant’s motion for a new trial. A demurrer was sustained to the first paragraph of answer. The transcript recites that a demurrer was filed to the amended second paragraph of answer, and that it was overruled, but we are not informed of the grounds of demurrer, nor is the demurrer itself copied into the record. In this condition of the record, no question is presented by this assignment of error.
The alleged libel consisted of a letter written by appellee to one McNaught, as follows: “One word with you which I hope will be confidential. If the Haltom note you spoke of is in the hands of a jack-leg lawyer here, would advise you to call it in at once, or you may lose it entirely, while, if Mr. Haltom is let alone, and not tantalized by him, he will do what is right. Your money is a great deal safer in Mr. H’s hands than in the aforesaid J. L. L. I know whereof I speak. I have tried it. I say you may as well tear up, or put collection in the fire, and be done with them and this vexation,” etc. It is averred that appellee by these words intended to, and did, charge that appellant was dishonest, and was guilty of embezzle
It is argued by appellee’s counsel that the third paragraph of answer was good in bar of the action, as presenting facts showing that the letter complained of was a privileged communication; but with this view of the pleading we cannot agree. It does not appear that the letter was written in answer to a confidential inquiry, nor does the pleading show that the relationship between appellee and the one to whom the letter was addressed was one which the law deems confidential. It does not appear that they were related, or that they were intimate friends, but simply that they were acquaintances who had had business dealings- with each other. See Krebs v. Oliver, 78 Mass. 239; Count Joannes v. Bennett, 87 Mass. 169. The letter does not appear to have been written in answer to any previous inquiry, but to have been
There are averments in this paragraph proper to be considered in mitigation of damages, — among others, appellant’s reputation as a lawyer, and his general character for honesty. There are’ averments in the paragraph which do not properly belong in it, but they do not make the pleading' bad against a demurrer for want of facts.