26 N.E. 91 (Ind. 1885), 11,815, Over v. Schiffling

Docket Nº:11,815
Citation:26 N.E. 91, 102 Ind. 191
Opinion Judge:Elliott, J.
Party Name:Over v. Schiffling
Attorney:H. Dailey and G. W. Winpenny, for appellant. S. Claypool, W. A. Ketcham and B. F. Watts, for appellee.
Case Date:April 24, 1885
Court:Supreme Court of Indiana

Page 91

26 N.E. 91 (Ind. 1885)

102 Ind. 191




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.


Page 92

Elliott, J.

The complaint of the appellee alleges that [102 Ind. 192] 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 [102 Ind. 193] 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 [102 Ind. 194] 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...

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