Over v. Schiffling

• Citation: 26 N.E. 91,102 Ind. 191
• Decision Date: 24 April 1885
• Docket Number: 11,815
• Parties: Over v. Schiffling
• Court: Supreme Court of Indiana

26 N.E. 91

102 Ind. 191

Over v. Schiffling

No. 11,815

Supreme Court of Indiana

April 24, 1885

Petition for a Rehearing Overruled June 26, 1885.

From the Marion Circuit Court.

Judgment affirmed.

H Dailey and G. W. Winpenny, for appellant.

S Claypool, W. A. Ketcham and B. F. Watts, for appellee.

OPINION

Elliott, J.

The complaint of the appellee alleges that the appellant maliciously published a libel; that the libellous matter was contained in a letter written by the latter to a corporation called the Encaustic Tile Company, by whom the appellee was then employed. The letter, omitting the date, address, signature and formal part, is as follows:

"Mr. Schiffling owes me on work done on your dies, etc., $ 33. If you would consent to retain such amount out of any money due him from you, let me know by return mail. If you will not consent to do so, I shall have to file a mechanic's lien on the goods. He got them of me by lying; first, he said he would bring an order from you, then he would pay cash for them before he took them away. He then watched his chances and took them when the foreman was not in, and now refuses payment."

It is also alleged that the appellee was dismissed from the service of the corporation to whom the letter was addressed, and he demanded special and general damages.

The language of the letter charges the appellee with having obtained property by corrupt and dishonest means. It is not necessary, in order to constitute even verbal slander, much less libel, that the charge that a corrupt or criminal act was committed should be made in direct terms. The question in such cases is, what meaning did the language employed convey to the mind of the person to whom it was addressed? Seller v. Jenkins, 97 Ind. 430. Words put in writing will often constitute a libel, which, if spoken, would not constitute actionable slander. We think it very clear that the corporate officers, who received and read the letter, must have understood that the writer charged the appellee with having obtained the property by fraudulent means, and, thus understood, the language was undoubtedly libellous. Hake v. Brames, 95 Ind. 161.

The letter was not a privileged communication. The information it professes to contain was volunteered, and the purpose for which it was conveyed to the appellee's employer was solely for the benefit of the writer, and was not intended to benefit the employer by giving him, in good faith and for a just purpose, information necessary for his protection against a knavish servant.

The appellant introduced Samuel Shue, and after he had been examined in chief and had been cross-examined at great length and at the close of the re-direct examination, he was asked this question: "State whether or not you reported these facts in reference to this matter to Mr. Over?" Upon objection being made, the counsel made this statement: "We offer to show that this witness communicated all these facts to Mr. Over before the 15th day of June, the day the letter was written." In our opinion the offer was too general, for we do not believe it was the duty of the trial court to examine the mass of testimony to determine what facts were competent; on the contrary, we think it was counsel's duty to specifically state the facts which they expected to show that the witness communicated to their client. There were some facts stated in the testimony of the witness that it would not have been proper to communicate to the appellant, and the court was not bound to analyze the testimony and sift out the competent from the incompetent. This should have been done by the question and offer of the counsel.

The appellee testified that he was directed by the appellant to his foreman, Mr. Cox, and thereupon the court permitted the appellee to testify what was said to him by the foreman. In this there was no error. Where a party directs another to a third person for information or directions, he is bound by the statements of such third person.

Our cases decide that where the intent with which an act is done becomes material, it is proper to ask what it was. City of Columbus v. Dahn, 36 Ind. 330; Greer v. State, 53 Ind. 420; White v. State, 53 Ind. 595, vide p. 596; Shockey v. Mills, 71 Ind. 288 (36 Am. R. 196); Parrish v. Thurston, 87 Ind. 437, vide p. 440. We think that the question asked the appellee, and objected to by the appellant, is fairly within the principle declared in these cases. It is competent in many cases, such as cases of fraud and the like, to ask a party a direct question, and we think this is an analogous case. So, too, where a negative is to be proved, it is often competent to ask a direct question. The reason for this is, that by proving affirmative facts to establish a negative conclusion, too much ground would be gone over and too much time consumed. Another reason is, that there are some cases where it is practically impossible to exclude every hypothesis by a course of affirmative questions, and, as the law is a practical science, it sometimes permits a direct question and answer upon a negative proposition.

If it were conceded that the court erred in permitting the appellee to inquire as to the aggregate amount in value of dies that had been made by the Encaustic Tile Company within a designated period, no available error was committed, for the reason that the grounds of objection were not specifically stated. But we think no error was committed, for the reason that the testimony tended to show the amount of the special damages sustained by the appellee.

The court refused to give the first instruction asked by the appellant, which reads thus: "The defendant in this cause, by his answer, admits that he wrote the letter which is alleged to be libellous, but says that the statements therein are true. By this answer the defendant only admits he wrote the letter; he does not admit that plaintiff was damaged thereby, or that he was in the employ of the Encaustic Tile Company; but the burden is on the plaintiff to show that he was in the employ of the Encaustic Tile Company, and that he lost said employment by reason of said letter, and that he has been damaged."

It is settled by many cases that unless the instruction as prayed is correct in terms, the court is not bound to amend or modify it, but may rightfully refuse it. Goodwin v. State, 96 Ind. 550, and authorities cited.

This instruction was not correct in terms, for the answer, by not directly controverting the allegation of the complaint that the appellee was employed by the Encaustic Tile Company, admitted it, for the failure to deny is an admission of the truth of a material allegation. The general scope and tenor of the answer filed by the appellant is that of a plea of justification, and it is by its general scope and tenor that it must be judged, and not by fragmentary statements cast into it. Kimble v Christie, 55 Ind. 140; Neidefer v. Chastain,...