Belck v. Belck

• Decision Date: 23 April 1884
• Docket Number: 11,082
• Citation: 97 Ind. 73
• Parties: Belck v. Belck
• Court: Indiana Supreme Court

97 Ind. 73

Belck v. Belck

No. 11,082

Supreme Court of Indiana

April 23, 1884

Petition for a Rehearing Overruled Sept. 25, 1884.

From the Marion Circuit Court.

W. D Bynum, A. T. Beck and W. F. A. Bernhamer, for appellant.

R. N Lamb and S. M. Shepard, for appellee.

OPINION

Best, C.

The appellee sued the appellant for slander in charging her with being a whore.

The complaint contains a half-dozen different set of words, each making the above charge, one-half in the second and the other half in the third person.

An answer in denial and that the cause of action was barred was filed; a reply, trial, verdict, and judgment for $ 1,000. A motion for a new trial was overruled, and this ruling is assigned as error.

The first point relied upon for a reversal is that the court erred in refusing to continue the cause for three days because of the absence of one of the appellant's attorneys. The affidavit in support of this motion stated that one William D. Bynum, the appellant's attorney, and the only one with whom he consulted or who was cognizant of the facts constituting his defence, was then in Galveston, Texas, as a representative of the Grand Jurisdiction of Indiana of the "Knights of Honor," at the session of the Supreme Lodge of that order, or on his return therefrom, and that he would and could be ready to try the cause at the expiration of such time; that he had a good defence to said action, etc.

These applications are addressed to the sound discretion of the court, and unless it appears that injustice has been done the ruling will not be disturbed. Whitehall v. Lane, 61 Ind. 93.

This does not appear. The appellant had two other attorneys, and it was his duty to put them in possession of the facts constituting his defence. These they could readily understand, as the only defence pleaded was a denial that the words were spoken within two years before the commencement of the suit. But little time was necessary to render them conversant with such defence, and, for aught that appears, abundant time had already elapsed since he knew that one of his attorneys would be away when the cause would be reached for trial, to enable him to consult with and fully inform his other attorneys as to the facts constituting his defence. If so he was required to be ready, and was not entitled to a postponement until the return of the absent attorney. There was no error in this ruling.

The next point urged is that the court erred in charging the jury, that if the plaintiff proved by a fair preponderance of the evidence that the defendant used of and concerning the plaintiff some set of words, or the substance of them, as alleged in the complaint, within the last two years before filing the complaint, they should find for the plaintiff.

This instruction is assailed upon two grounds. The first is that the filing of the complaint is not the commencement of the action, and, therefore, this instruction was erroneous. This is true. The action is not commenced, as a general rule, until the writ is issued, and as a cause of action which accrued within two years before the complaint was filed may be barred before the suit is commenced, the instruction, in view of the fact that the statute of limitations was pleaded, was not strictly correct, but as the writ in this case was issued upon the same day that the complaint was filed, the instruction was correct as applied to this case. The suit having been commenced on the same day the complaint was filed, the cause of action was not barred if the language was spoken within two years before the complaint was filed, and hence the instruction was not erroneous in this respect.

The next objection urged to this instruction is, that it directs the jury to find for the plaintiff, as appellant contends, without proof of malice. In other words, that the court assumed, if the words were spoken, that they were maliciously spoken. This was not erroneous. The law imputes the malice where the language is actionable per se, and no legal excuse or justification is shown. Townshend on Slander, section 87; 3 Sutherland Dam. 650, and authorities cited.

The evidence is not in the record, and in such case an instruction will not be regarded erroneous if proper under any supposable state of facts. Boyd v Wade, 58 Ind. 138; Davidson v. Nicholson, 59 Ind....