Cadle v. McIntosh
| Decision Date | 08 November 1912 |
| Docket Number | 7,736 |
| Citation | 99 N.E. 779,51 Ind.App. 365 |
| Parties | CADLE v. MCINTOSH |
| Court | Indiana Appellate Court |
From Washington Circuit Court; Thomas B. Buskirk, Judge.
Action by Emmet H. Cadle against John W. McIntosh. From a judgment for defendant, the plaintiff appeals.
Reversed.
Will H Talbott, Milton B. Hottel and Wilbur W. Hottel, for appellant.
Elliott & Houston, for appellee.
OPINION
This was an action for slander. Appellee filed an answer of general denial to the complaint of appellant, and the issue thus formed was submitted to a jury for trial. After plaintiff had introduced his evidence and rested, defendant made a motion for a peremptory instruction in his favor. This motion was sustained, and the court thereupon instructed the jury in writing to return a verdict for defendant. A verdict was returned in obedience to this instruction, and the court rendered judgment thereon. Appellant saved his exceptions to the giving of the peremptory instruction, and filed a motion for a new trial, in which this was assigned as error. The court overruled the motion, and this ruling is assigned as error on appeal, and presents the only ground relied on for reversal.
The slanderous words alleged to have been spoken by appellee of and concerning appellant were that he was a thief, a drunkard and a gambler. The speaking of the same set of words is charged in different forms in five paragraphs of complaint. Whether the trial court was justified in giving the peremptory instruction complained of must depend on the evidence.
The evidence consists entirely of the testimony of three witnesses, and tends to prove that defendant spoke the slanderous words, charged in the complaint of and concerning plaintiff, in a bank at Orleans, Indiana, in the presence of Jonce Monyhan, Homer Fisher and Alfred Parish. The evidence further shows that defendant was at the time a member of the Lodge of Knights of Pythias, and that he lived in Hardinsburg, about twenty miles from Orleans; that he was in Orleans on that occasion in an attempt to prevent plaintiff from becoming a member of the Knights of Pythias Lodge at Orleans; that all the persons to whom the communication in question was made belonged to the order of Knights of Pythias, and that plaintiff was taking the work at Orleans, and had taken some of the degrees at the time the conversation in question took place.
Mr. Monyhan testified, in substance, as follows: Sometime the first of the year I had a conversation with defendant, McIntosh, there at our bank--the Citizens Bank of Orleans, Indiana. He came into the bank to talk with me concerning plaintiff, Cadle, taking the work of the "Pythian Lodge." He discussed the matter, but I do not remember all that was said. I remember that he said that plaintiff was not a man capable nor fit to become a "Knight". He told me that he (Cadle) had been blackballed over at his town of Hardinsburg. He said he was over to try to keep our lodge from taking him in; that he was not a man that was fit to belong to the lodge; that he was a gambler and a thief. He said that Cadle, and one or two other men waylaid him and beat him. He also said that he (Cadle) was a drunkard. Mr. Parish was in the bank, and I think Homer Fisher came in during the conversation. Mr. Parish was present during all the conversation. He was at work in the bank. All of us were Knights of Pythias, and he was talking to me about Cadle joining or going into the lodge.
The evidence further shows that none of the persons to whom this conversation was made was a member of any committee to investigate the fitness of appellant to become a member of the lodge, and that none of them asked Mr. McIntosh as to the character of Mr. Cadle or his fitness to become such a member, but that appellee introduced the subject. Appellee was informed, as shown by the evidence, that Albert Martin was on the investigating committee, and that the matter had gone too far; that appellant had already taken part of the work, and that appellee would have to take other action.
To establish his case, plaintiff was required to prove only the publication by defendant of the libelous language concerning him, as alleged in the complaint. The evidence is not wanting in this particular, but it is asserted, on behalf of defendant, that the trial court was, nevertheless, warranted in directing a verdict in favor of defendant, for the reason that the evidence of plaintiff, without dispute, discloses a state of facts from which the court must say that the occasion on which the alleged libelous language was used was one of qualified privilege; and that plaintiff cannot recover under such circumstances without proof of express malice; and that there is no evidence proving, tending to prove, or from which the jury might properly infer, actual malice on the part of defendant.
Appellant contends (1) that the facts disclosed by the evidence do not show an occasion of qualified privilege; (2) that a qualified privilege cannot be proven, or, if proven, cannot be considered as a defense unless specifically pleaded; and (3) that there is evidence in the record from which the jury might properly have inferred express malice, and that the facts should, therefore, have been submitted to the jury.
The law of libel and slander recognizes two classes of privileged communication, absolute and qualified. If the communication is made under such circumstances as to constitute an absolute privilege, no right of action accrues, even though the words spoken or written, would otherwise be actionable. We need not consider the circumstances constituting an absolute privilege, for the reason that it is conceded by both parties to this controversy that if the circumstances under which the words were spoken constitute a privilege at all, it was only a qualified privilege. The rule in reference to a qualified privilege is that a communication made in good faith on any subject-matter in which the party making the communication has an interest, or in reference to which he has a duty either public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged. The fact that words otherwise actionable are spoken under such circumstances rebuts the inference of malice which would otherwise arise as a matter of law from the speaking of the words. Plaintiff must then establish express malice by a preponderance of the evidence, or fail in his action. Henry v. Moberly (1893), 6 Ind.App. 490, 33 N.E. 981. The case cited contains such a full discussion of the subject of qualified privilege, with such an elaborate citation of authorities that a further discussion is deemed unnecessary in this case. It is sufficient to say, that it appears from the evidence that ...
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