Hamilton v. Lowery

• Decision Date: 19 May 1904
• Docket Number: 4,845
• Citation: 71 N.E. 54,33 Ind.App. 184
• Parties: HAMILTON v. LOWERY
• Court: Indiana Appellate Court

71 N.E. 54

33 Ind.App. 184

HAMILTON v. LOWERY

No. 4,845

Court of Appeals of Indiana

May 19, 1904

From Huntington Circuit Court; A. H. Plummer, Special Judge.

Action by Ida M. Hamilton against John Lowery. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

J. S Branyan and Milo Feightner, for appellant.

C. W Watkins, H. C. Morgan and Steele & Dicken, for appellee.

BLACK J. Robinson, J., concurs in the conclusion.

OPINION

BLACK, J.

The appellant, Ida M. Hamilton, brought her action against the appellee, and the court below held each of the three paragraphs of complaint insufficient on demurrer. In the first paragraph it was alleged that, before the committing of the grievances thereinafter mentioned, the appellant was a married woman, and the wife of one W. L. Hamilton, and that she resided in Banco, Huntington county, and bore a good reputation and name, in the neighborhood in which she lived, for virtue and chastity, and had the respect of her neighbors and relatives; that the appellee, on, etc., "knowing the premises aforesaid, falsely and maliciously, with the intention of injuring plaintiff in her good name and reputation, and to disgrace her in the eyes of her acquaintances, composed and published, and caused to be published, a certain letter concerning this plaintiff, in the words and figures following, to wit: Ask your wife wht she Put the light after midnight wednesday night for and lets it burn when you are Here. We are wathing them you are a fool. What do you think of them childr.' Plaintiff avers that defendant meant and wanted to be understood by said publication, and was so understood, that plaintiff, the said Ida M. Hamilton, was guilty of adultery with Emmett Hamilton, who was her brother-in-law and a boarder in her family, and that she was guilty of having illicit intercourse with the said Emmett Hamilton. Wherefore plaintiff, by reason of the foregoing premises, had been injured in her good name and reputation, and suffered great mental anguish and distress of mind, to her damage in the sum of," etc. The second paragraph was like the first, except that the contents of the letter were therein set out as follows: "If you knowed what is going on in your Home you would ship Boarder. It was sam thursday night don't Be deceived it is straight this is no enemy to your home. He got thick with the last woman where He worked. People in this town ant asleep." The third paragraph was like the others, except that the letter was set out as follows: "When you Let emett Hig you turn the Lamp dow as we went Past thirsday morning we saw Him Having unbecoming Conduct toward you if you will Let him do that and the lamp Burning what would you do in the dark. He tried to ruin a family where He Come from and He Will do it Here we will keep an eye out and there will be a Publick Notice Put up in Banco. Shame to such a woman. Ida Hamilton. Bill Has Been notified of this."

Our statute dispensing with the necessity of showing, by the statement of extrinsic facts, the application of the alleged defamatory words to the plaintiff, does not dispense with the allegation of such facts to show the meaning or application of ambiguous language or language not actionable per se. "Innuendoes are mere corollaries from antecedent allegations. They can not supply averments of facts or extend the meaning of words. They can not raise questions of fact. An innuendo is explanatory of a subject-matter sufficiently expressed before." Emig v. Daum, 1 Ind.App. 146, 27 N.E. 322, and cases there cited; Bidwell v. Rademacher, 11 Ind.App. 218, 38 N.E. 879. "Where an inducement or colloquium and innuendo were required by the common law in a declaration, they are required under the code in a complaint, so far as relates to the subject-matter." Emmerson v. Marvel, 55 Ind. 265; Hart v. Coy, 40 Ind. 553; Ward v. Colyhan, 30 Ind. 395. "Where words are used, not actionable within themselves there should be some prefatory allegation of some extrinsic matter, or an explanation of the particular and criminal meaning of the words. This introductory matter having been stated, the colloquium should connect with it the speaking of the words complained of, leaving to the innuendo its proper office of giving those words that construction which they bore in reference to the extrinsic fact, or explanation of their particular meaning." Harrison v. Manship, 120 Ind. 43, 22 N.E. 87. The office of an innuendo is to connect words, not in themselves actionable, with some precedent facts formally averred, which explain their meaning. Watts v. Greenlee, 2 Dev. (N.C.) 115. It is not necessary that the extrinsic facts to support the innuendo that the defendant meant to impute certain conduct be inserted in any particular place or portion of the complaint, but such extrinsic matter must be somewhere shown by statement of facts. Brittain v. Allen, 2 Dev. (N.C.) 120. "The innuendo avers the meaning of the words as intended by the speaker, and as understood by the hearers. It must be warranted by the colloquium, or by the introductory matter; that is, must be a rational inference, that they were so meant, and so understood." Brittain v. Allen, supra.

In Watts v. Greenlee, supra, it was said by the court: "The words are, all Watt's girls are big.' There is no colloquium charged, by which any other than the ordinary meaning of the words can be given to them. They are to be taken abstracted from any context, for none appears. The innuendo is, thereby meaning, big with child to his negro Ben.' It is going far enough, and perhaps too far, without a colloquium, or introduction, to say that big means big with child; but there can not be the least pretense for saying it means big with child by negro Ben."

In Hart v. Coy, supra, the complaint alleged that the defendant, in a conversation, had while plaintiff, with other ladies, was standing in front of defendant's store, to and of the plaintiff, and of and concerning plain...