OPINION
Monks, J.
This
was an action for libel by appellant against appellee. The
complaint was in five paragraphs. A demurrer for want
of facts was sustained to the fifth paragraph of complaint.
Appellee filed an answer of justification in three
paragraphs. Appellant's demurrer for want of facts to
each paragraph of the answer was overruled. The cause was
tried by a jury, and a verdict returned in favor of appellee,
and, over a motion for a new trial, judgment was rendered
against appellant.
The
errors assigned call in question the action of the court in
sustaining the demurrer to the fifth paragraph of complaint,
in overruling the demurrer to each paragraph of answer, and
in overruling the motion for a new trial.
The
only substantial difference between the fifth paragraph and
other paragraphs of the complaint is that it anticipates the
defense. The error, therefore, if any, in sustaining the
demurrer to said paragraph was harmless, because the other
paragraphs of complaint required no more or greater evidence
to sustain them than would have been required to sustain said
fifth paragraph. Metzger v. Hubbard, ante,
189.
It is
next insisted that the paragraphs of answer in justification
were insufficient because "the same are not as broad as
the charges contained in the hand-bill published by appellee,
and that no facts are alleged showing that said charges were
true." The hand-bill set forth in the complaint is as
follows: "To the Public! The advertisement of C. C.
Hauger & Co., in the Salem Democrat of Nov. 15, 1895,
charges the undersigned with having received and accepted an
order from J. W. Hauger for clothing sold to one W. T.
Nelson. The ad. gives the following as "about" the
language of the said order: 'Mr. C. C. Hauger, you will
sell Mr. Nelson some clothes and I will settle with you for
them. Signed, J. W. Hauger.' I desire to say that no such
order was ever presented to myself or my employes, and that
it is one of C. C. Hauger's lies manufactured out of
whole cloth, and the facts themselves condemn
him as a wilful and infamous liar. $ 200 Reward. I make this
proposition and dare and defy him to accept it. I have placed
in a sealed envelope the order that Mr. Nelson gave in
payment for his purchase. I have deposited it with James F.
Persise, cashier of the Bank of Salem, and with it the sum of
$ 200. Let C. C. Hauger & Co., place a like sum there
and, if the order referred to in C. C. Hauger & Co's.
advertisement, contains the name of "C. C. Hauger",
or "C. C. Hauger & Co." or "J. W.
Hauger" or simply "Hauger", I hereby authorize
Mr. Persise to hand over to C. C. Hauger the deposit of $ 200
he holds of my money, but if the order does not contain the
words mentioned then Mr. Persise is to hand me over Mr.
Hauger's deposit, and I name his immediate neighbors,
Messrs. Charles McClintock and Thomas Williams--or any two
fair minded citizens that Mr. Hauger himself may name, to
examine the order. Now Mr. Hauger, put up or shut up. This
offer holds goods until 9 a. m. Monday. Lon Benua, The Square
Clothier."
The
answer of justification admits the publication of the
hand-bill and alleges that "the matters contained in
said hand-bill are true in substance and fact; that on the of
November, 1895, the same being prior to the publication
complained of and alleged to be libelous, said plaintiff
caused to be printed in the Salem Democrat, a public weekly
newspaper of general circulation published in the town of
Salem, in the county of Washington and State of Indiana, a
certain wicked, false, malicious, and libelous article of and
concerning this defendant, and which was understood by those
who read it as referring to and meaning this defendant, and
which article was and is in part as follows, viz.: 'Only
last week Mr. J. W. Hauger, the grocer, gave to Mr. W. T.
Nelson an order to us for some clothing, Mr. Nelson not being
informed that we had left the only stand in the Opera House
block, called there and asked for Mr. Hauger. He was informed
by some of the hands that Mr. Hauger had just stepped out,
and the hand asked if there was anything
wanted. Mr. Nelson said that he wanted some clothing. The
party showed him through and induced him to take some stuff.
After wrapping it up Mr. Nelson presented the order from Mr.
J. W. Hauger, stating about this: Mr. C. C. Hauger, you will
sell Mr. Nelson some clothes and I will settle with you for
them. Signed, J. W. Hauger. These people accepted the order
and now hold the same, but the party did not find out that
they had told him a falsehood until Friday of last week, and
then is when he told us about the transaction. We notified
Mr. J. W. Hauger about it and he said he would not pay the
order, but would pay the money to Mr. Nelson, as they had no
right to sell the goods upon the order. We only give this as
evidence to show what some people will do for a little trade
when there is but a little profit. Where is there an honest
man that would do as little a trick as that. We will give $
100 reward for one.' Said defendant further avers that
the foregoing article so published by said plaintiff was and
is false, and that no such order as the one referred to and
described in said publication was ever presented to this
defendant, his clerks, or agents, and that said article so
published or caused to be published by said plaintiff was and
is wholly false, and that the matters and facts contained in
said hand-bill, alleged to be libelous, are true."
It is a
well settled rule that a plea of justification must be as
broad as the charge which it seeks to justify. Where the
defamatory charge is made in general terms,...
