Funk v. Beverly

• Decision Date: 22 October 1887
• Citation: 13 N.E. 573,112 Ind. 190
• Parties: Funk v. Beverly.
• Court: Indiana Supreme Court

112 Ind. 190

13 N.E. 573

Funk

v.Beverly.

Supreme Court of Indiana.

October 22, 1887.

Appeal from circuit court, Warren county.

J. G. Pearson and W. D. Rhodes, for appellant. Schoonover & Reed, for appellee.

Elliott, J.

The alleged slanderous words given as the cause of action in the third paragraph of the appellant's complaint are these: “I know all about that case. While she was out there claiming to be the wife of George W. Funk, she was back here claiming to be my wife.” These words do not impute a want of chastity, and are not actionable per se. Emmerson v. Marvel, 55 Ind. 265;Schurck v. Kollman, 50 Ind. 336;K ------ v. H ------, 20 Wis. 239. The court did right in sustaining the demurrer to the third paragraph of the complaint.

The fourth paragraph of the complaint charges that the defendant wrote and published of the plaintiff, among other libelous words, the following: “That the defendant was approached by one William Washburne, who was then a single man living near Attica, Indiana, and was told by said Washburne that he (Washburne) had been with said Melissa Funk at a camp-meeting at Meharig's grove, in the fall of 1870, and while there he had taken said Melissa Funk into a tent by themselves, and had laid in there with her, and said Washburne gave the defendant to believe that he had intercourse with her, and when defendant asked him if it was true that he had intercourse with her, he (Washburne) admitted that he had.” Other libelous words are alleged, but we do not deem it necessary to quote them.

The first paragraph of the answer is intended as a plea of justification, and is addressed to the entire complaint. It avers generally that the words spoken and written by the defendant were true, and then proceeds specifically to affirm their truth. So far as concerns the libelous words quoted from the complaint, the specific allegations of the answers are these: “That he was also approached by William Washburne, then a single man, and was told by him that he (Washburne) had been with plaintiff at a camp-meeting at Meharig's grove, in the fall of 1870, and that while there he had taken the plaintiff into a tent by themselves, and had laid in there with her, and said Washburne gave the defendant to believe that he had intercourse with her at said camp-meeting, and when this defendant asked him if it was true that he had intercourse with her, he said he had.” In the concluding part of the answer it is alleged: “So that all the words charged to have been spoken and published by defendant of and concerning plaintiff, were and are true, in the sense in which it is alleged they were spoken.”

It is clear that this answer does not aver that the appellant did in fact have carnal intercourse with Washburne. It goes no further than to assert that Washburne did tell the defendant that such intercourse did take place. The theory of the answer is that the defendant is justified, because he repeated what was told him, and that it was true that he was told what he repeated. The truth of the charge against the appellant is not affirmed. Nothing more is affirmed than that it is true that Washburne did tell the defendant what he repeated in his written and oral statements. There is no justification of the charge against the chastity of the appellant, for there is no averment that the charge is true, but the...