188 Ind. 554 | Ind. | 1919
— This is an appeal from a judgment for ' $25,000 rendered in an action brought by appellee against appellant Edward G. Sourbier and William
Enough of the substance of the complaint is set out to indicate how the questions presented and later discussed arise. The Verdict returned by the jury was against both defendants jointly, and the judgment followed the verdict.
Appellant Sourbier asserts that the facts disclosed
The court is of the opinion that the position of appellant is correct as to the law when applied to a state of facts such as he claims to exist in this case.
In determining whether the answers to the interrogatories are in conflict with the general verdict, the court, can consider only the issues, the general verdict and the interrogatories and answers thereto. In passing on the question thus presented the court regards the general
Appellant Sourbier was sued as a joint tort-feasor with William Hansman. A verdict was returned against both defendants jointly, and a joint judgment was rendered. Appellant Sourbier asserts that facts are found by answers to the interrogatories which show clearly and unequivocally that he was not a joint tortfeasor with his codefendant either in composing or printing the alleged libelous letter or in making the original publication of such letter, and that he did not conspire with his codefendant to print and publish such letter as alleged in the complaint. Appellant does not claim that the answers to the interrogatories are otherwise in conflict with the general verdict.
The answer to interrogatory No. 7 finds that appel
The general verdict finds that appellant Sourbier composed the circular letter, procured it to be printed, and participated in the original publication. If the jury meant for their answer to have the limited application indicated it does not conflict with the general verdict. So construed the interrogatories do not directly and affirmatively show that appellant was not a joint tortfeasor with his codefendant in making the original publication. Appellant’s motion for judgment in his favor on the interrogatories was properly overruled. • Appellant Sourbier also assigns as error the action of the trial court in overruling his motion for a new trial. Under this head several questions are presented arising under different causes assigned.
While the rule as stated may be regarded as settled, it cannot avail appellant in this case. The answers to the interrogatories on which appellant relies do not show directly, positively and unequivocally that he did not participate and take part in making the primary publication. The general verdict finds that he composed the letter, and that he caused it to be printed and published, and the finding so made must stand unless there is a total failure of evidence to sustain it.
To sustain his contention that the verdict is contrary to law, appellant relies on the answers to the interrogatories as showing a state of facts on which no verdict could be legally based fixing a liability on appellant Sourbier jointly with his codefendant. For the reasons heretofore stated this position cannot be sustained.
Other errors presented under the motion for a new trial relate to the giving of certain instructions and the refusal to give each of the instructions tendered by appellant Sourbier. By each of the instructions tendered the court was requested to charge the jury that it would not be warranted in finding the defendants jointly liable unless the preponderance of the evidence showed that they acted in concert or unity in carrying out a common design or purpose to print or publish the alleged libelous circular.
Where two or more persons at different times and places deposit rubbish and filth in a stream, the result of which is to befoul the water, they cannot be held jointly liable for the resulting damage. Martinowsky
Such an instruction as applied to the evidence in this ease was clearly prejudicial. The defendant Sourbier admitted that he had made the secondary publication, and, under the seventh instruction, he was clearly liable unless the charges contained in the circular letter were found to be true. He denied that he had any connection with making the primary publication, and an issue of fact was thus presented on which the evidence was conflicting. There was no direct evidence showing that he participated in making the primary publication or in causing it to be made, but circumstances were shown from which such participation could be reasonably inferred. The verdict finds against the defendant on the theory that he was responsible for one or the other of such publications', and the court has no means of knowing on which of such publications the verdict rests. The motion of appellant Sourbier for a new trial should have been sustained.
The judgment is reversed as to appellant Sourbier,
The death of appellee, George W. Brown, since the submission of the appeal having been suggested to the court, it is ordered that this judgment be, and the same is hereby, rendered as of the date of submission of this cause.
Note. — Reported, in 123 N. E. 802. See under (1-4) 25 Cyc 365-370, 427; (5) 25 Cyc 434; (6) 25 Cyc 430; (7) 25 Cyc 367.