Buscher v. Scully

• Decision Date: 24 March 1886
• Citation: 107 Ind. 246,5 N.E. 738
• Parties: Buscher v. Scully.
• Court: Indiana Supreme Court

107 Ind. 246

5 N.E. 738

Buscher

v.Scully.^a1

Supreme Court of Indiana.

Filed March 24, 1886.

Appeal from Hamilton circuit court.

Neal & Neal, for appellant.

Moss & Stephenson, for appellee.

Elliott, J.

The appellee's complaint contains two sets of slanderous words, and is unquestionably sufficient to repel the demurrer addressed to the entire pleading, even though it should be conceded that one set was not actionable.

Rulings of the trial court in excluding evidence, or in refusing to check the misconduct of counsel in argument, cannot be brought into the record by the affidavit of one of the parties. The proper mode of getting such rulings into the record is by setting them forth in the bill of exceptions as the action of the court. Indianapolis, etc., Co., v. Christian, 93 Ind. 360.

Our statute makes it slander to falsely charge a woman with fornication or adultery, and this is but a declaration of the American common law. Odgers, Libel & Sland. 84, American editor's note. It is not essential that the charge should be made in direct terms; it is sufficient if the words used were such as imputes to her fornication or adultery, and were so understood by those who heard them. Proctor v. Owens, 18 Ind. 21;Wilson v. Barnett, 45 Ind. 163;Waugh v. Waugh, 47 Ind. 580;Branstetter v. Dorrough, 81 Ind. 527, and authorities cited; Seller v. Jenkins, 97 Ind. 430.

The complaint charges that the words imputing a want of chastity were used in the past tense, while the evidence shows that they were spoken of a matter in the present tense. This is not such a variance as precludes a recovery. Townsh. Sland. & Lib. (3d Ed.) § 367.

Judgment affirmed.

NOTE.

1. Words Actionable per Se. Any article that holds a person up to scorn and ridicule, contempt, and execration, or imputes or implies the commission of a crime not openly charged, is actionable per se. Crocker v. Hadley, (Ind.) 1 N. E. Rep. 734; Bradley v. Cramer, (Wis.) 18 N. W. Rep. 268; Shattuc v. McArthur, 25 Fed. Rep. 133.

The fact that the article is in a foreign language does not prevent it being actionable per se. Kimm v. Steketee, (Mich.) 12 N. W. Rep. 177.

Words intended to expose a person to public contempt, hatred, and ridicule, and to deprive him of the benefit of public confidence and social intercourse, are actionable per se, Call v. Larabee, (Iowa,) 14 N. W. Rep. 237; such as circulating hand-bills charging a person with larceny, Bowe v. Rogers, (Wis.) 7 N. W. Rep. 547. Saying “J. O'D., the old scoundrel, came down and stole my bull, and I can prove it; and if he don't come and settle it up, I will put him through, and will make him pay dear for taking him away,”-imports a charge of larceny, and is actionable per se. O'Donnell v. Hastings, (Iowa,) 26 N. W. Rep. 433. Charging a man with being a “hog” is, Solverson v. Peterson, (Wis.) 25 N. W. Rep. 14. Accusing a married woman of being a prostitute, Klewin v. Bauman, (Wis.) 10 N. W. Rep. 398; or charging that “she is slow-poisoning her husband” is, Campbell v. Campbell, (Wis.) 11 N. W. Rep. 456; words charging commission of an indictable felony or misdemeanor are, West v. Hanrahan, (Minn.) 10 N. W. Rep. 415; Geary v. Bennett, (Wis.) Id. 602. But charging one with “bearing down” when defendant's stock was weighed, and “lifting up” when plaintiff's was weighed, are not actionable unless it be also charged that plaintiff was weigh-master, or in some way interested. Wilkin v. Tharp, (Iowa,) 8 N. W. Rep. 467. And it has been held that charging a person with having sworn falsely in a lawsuit, is not. Schmidt v. Witherick, (Minn.) 12 N. W. Rep. 448. A publication in newspaper falsely charging one with the commission of crime, is. Peoples v. Detroit Post & Tribune Co., (Mich.) 20 N. W. Rep. 528. And a publication in writing, though not charging a public offense, is nevertheless libelous if it falsely and maliciously tends to produce such an impression. Bradley v. Cramer, (Wis.) 18 N. W. Rep. 268. And where a railroad company, through its superintendent, assigns as a reason for the discharge of an employe a criminal act, it is actionable. Bacon v. Michigan Cent. R. Co., (Mich.) 21 N. W. Rep. 324. Where an employe of a railway is discharged, and, upon inquiry of the official by whom he is discharged, is informed that it was upon the charge of theft, or other accusations that would be slanderous under other circumstances, the fact that he sought the information makes such language a privileged communication, unless the plaintiff can clearly show malice, abuse, or vilification in language, manner, or circumstance under which the communication was made by the defendant. Beeler v. Jackson, (Md.) 2 Atl. Rep. 916.

(1) Words Respecting Business Men and Merchants. Words which impute to a merchant a want of credit or responsibility, or insolvency, past, present, or future, are. Newell v. How, (Minn.) 17 N. W. Rep. 383. Every publication in writing or in print, which charges upon or imputes to a merchant or business man insolvency or bankruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant or business man, is. Erber v. Dun, 12 Fed. Rep. 526. A circular setting out a transaction by a firm, and alleging that “they are not worthy of support,” and charging them with “base treachery and foul and unfair dealings,” is not actionable per se. Donaghue v. Caffey, (Conn.) 2 Atl. Rep. 397. An article in print, depreciating a merchant's or tradesman's wares, and charging him with counterfeiting genuine articles and their labels, is. Kimm v. Steketee, (Mich.) 12 N. W. Rep. 177.Where a bank cashier returned draft sent for collection with these written words, “We return unpaid draft, [describing it;] he [drawee] pays no attention to notices,” in action against the cashier for libel it was held that the words do not impute to plaintiff (drawee) any want of integrity and are not actionable per se. Platto v. Geilfuss, (Wis.) 2 N. W. Rep. 1135.

(2) Words Regarding Professional Men. Defamatory words spoken or written of one in his profession are actionable per se. Pratt v. Pioneer Press Co., (Minn.) 20 N. W. Rep. 87.

( a) Regarding Lawyers. Charging an attorney with “betraying and selling innocence in a court of justice,” is, Ludwig v. Cramer, 10 N. W. Rep. 81; or calling him a “shyster.” Gribble v. Pioneer Press Co., (Minn.) 25 N. W. Rep. 710.

( b) Regarding Physicians. Where the words employed in a publication in a newspaper, in stating the conduct of a physician in a particular case, only impute to him such ignorance or want of skill as is compatible with the ordinary or general knowledge and skill in the same profession, they are not actionable per se; but where they are such as fairly impute to him gross ignorance and unskillfulness in such matters as men of ordinary knowledge and skill in the profession should know and do, then they necessarily tend to bring such physician into public hatred, ridicule, or professional disrepute, and are actionable per se. Ganvreau v. Superior Publishing Co., (Wis.) 22 N. W. Rep. 726. Publishing in a newspaper, in the “want” column, the words, “Wanted, E. B. Zier, M. D., to pay a drug-bill,” are not actionable per se, Zier v. Hoflin, (Minn.) 21 N. W. Rep. 862; but may become so from the circumstances under which they are published. Woodling v. Knickerbocker, (Minn.) 17 N. W. Rep. 387;Zier v. Hoflin, (Minn.) 21 N. W. Rep. 862.

( c) Regarding Newspaper Men. Falsely charging an editor with being drunk may be. State v. Mayberry, (Kan.) 6 Pac. Rep. 553. Charging a newspaper publisher with being a party to a secret conclave, in which he, the publisher, sold the support and advocacy of his said newspaper to a certain corporation for a large sum of money, is actionable per se. Fitch v. De Young, (Cal.) 5 Pac. Rep. 364.

( d) Regarding Railroad Men. It has been held that a statement that a general...