Campbell v. Irwin

• Citation: 45 N.E. 810,146 Ind. 681
• Decision Date: 02 February 1897
• Docket Number: 18,028
• Parties: Campbell v. Irwin
• Court: Supreme Court of Indiana

45 N.E. 810

146 Ind. 681

Campbell v. Irwin

No. 18,028

Supreme Court of Indiana

February 2, 1897

From the Montgomery Circuit Court.

Reversed.

M. E Clodfelter, for appellant.

M. W Bruner and Crane & Anderson, for appellee.

OPINION

Jordan, C. J.

Appellant an unmarried woman, sued the appellee in an action for slander, wherein she demanded damages for the alleged wrong in the sum of $ 5,000.00. The complaint is in three paragraphs, each containing three sets of words upon which the alleged slander is based. By innuendoes and averments, it is charged that the defendant, on the several occasions mentioned, by speaking and publishing the words set out therein, imputed to the plaintiff the crime of fornication with one Dr. S. G. Irwin; that she so meant and intended to impute said crime to the plaintiff, and was so understood by the persons in whose presence the words were spoken. The complaint was held sufficient by the court upon demurrer, and the appellee filed her answer in two paragraphs, the first being a general denial. The second purports to be in justification, and was held to be sufficient as such on demurrer. Under the issues joined, a trial by jury resulted in a verdict for the defendant, and judgment was rendered in her favor for cost.

Among the errors assigned, the action of the court in overruling appellant's demurrer to the second paragraph of the answer is called in question. This paragraph is as follows:

"2d Par. The defendant, for further cause of defense herein, alleges that she admits the speaking of the words set out in the complaint, but she says that Dr. S. G. Irwin has been keeping and running the plaintiff for a long time; that Dr. S. G. Irwin did have plaintiff locked up in his back office for bad purposes and was criminally intimate with her, and plaintiff did have criminal intercourse with Dr. S. G. Irwin, and she is not a virtuous woman; that plaintiff did send for Dr. S. G. Irwin at Alamo, and that he did go when it was pouring down rain when he would not have gone across the street to see any other patient. So the words charged in the complaint are true, and defendant demands judgment for costs."

By section 286, Burns' R. S. 1894 (285, R. S. 1881), every charge of incest, fornication, adultery, or whoredom, falsely made against a female, is actionable in the same manner as are slanderous words charging a crime, etc. Fornication is made a crime by the criminal code, section 2077, Burns' R. S. 1894 (1991, R. S. 1881). The infirmity of this answer in the main is that it simply reiterates, in part, the defamatory words averred in the complaint with a conclusion that they are true, without setting out a single fact that the charge or offense of fornication attributed to the appellant, as alleged in her complaint, was true. It is well settled by our decisions that the justification of the slander must be as broad as the charge, and must apply to the very charge which the defendant attempts to justify. The plea or answer of justification is required to affirmatively show that the plaintiff is guilty of the offenses imputed by the words set out in the complaint, and that they were true in the sense in which they are averred to have been spoken by the defendant, and where it is addressed to the entire charge, it must justify every set of words alleged in the complaint. Section 376, Burns' R. S. 1894 (373, R. S. 1881), provides that the defendant may allege the truth of the matter charged as defamatory, etc. Section 350, Burns' R. S. 1894 (347, R. S. 1881), pertaining to the practice in civil actions, provides that "the answer shall contain * * * a statement of any new matter constituting a defense, etc., in plain and concise language." Neither of these provisions of the code can be said to authorize a defendant in an action for slander to justify by the mere reiteration of the slanderous words in his answer, with an averment that they are true, without a statement of any facts showing that the imputed charge of which plaintiff complains is true.

Under the common law rule, the defendant in his plea of justification was required to state specific...