Hauger v. Benua

Decision Date23 May 1899
Citation53 N.E. 942,153 Ind. 642
PartiesHAUGER v. BENUA.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Washington county; G. H. D. Gibson, Judge.

Action for libel by Charles C. Hauger against Lou Benua. From a judgment entered on a verdict for defendant, plaintiff appeals. Reversed.

Alspaugh & Lawson and Zaring & Hottel, for appellant. Samuel H. Mitchell, for appellee.

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 evidence admissible under said paragraph was admissible under other paragraphs of the complaint.

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 handbill published by appellee, and that no facts are alleged showing that said charges were true. The handbill set forth in the complaint is as follows: To the Public: The advertisement of C. C. Hauger & Co. in the Salem Democrat of November 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 employés, and that it is one of C. C. Hauger's lies, manufactured out of whole cloth, and the facts themselves condemn him as a willful and infamous liar. $200.00 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 good until 9 a. m. Monday. Lou Benua, Square Clothier.” The answer of justification admits the publication of the handbill, and alleges that “the matters contained in said handbill 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. Hanger 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...

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8 cases
  • Scott v. City of Laporte
    • United States
    • Supreme Court of Indiana
    • 8 Octubre 1903
    ...... are identical. The effective certification as to what the. evidence was is that of the judge. Hauger v. Benua, 153 Ind. 642, 53 N.E. 942. If the clerk may. pursue a like course in the preparation of his transcript, as. our cases assert, much ......
  • Scott v. City of La Porte
    • United States
    • Supreme Court of Indiana
    • 8 Octubre 1903
    ...one afterwards referred to are identical. The effective certification as to what the evidence was is that of the judge. Hauger v. Benua, 153 Ind. 642, 53 N. E. 942. If the clerk may pursue a like course in the preparation of his transcript, as our cases assert, much more ought it to be held......
  • Foudy v. Daugherty, 17593.
    • United States
    • Court of Appeals of Indiana
    • 19 Diciembre 1947
    ......70;Hardison v. Mann et al., 1898, 20 Ind.App. 404, 50 N.E. 899;Claypool v. Jaqua, Administratrix et al., 1893, 135 Ind. 499, 35 N.E. 285;Hauger v. Benua, 1899, 153 Ind. 642, 53 N.E. 942; Watson's Works Practice, § 536, p. 394, and cases therein cited.         The second assignment of ......
  • Sheibley v. Fales
    • United States
    • Supreme Court of Nebraska
    • 21 Mayo 1908
    ...319;Dever v. Clark, 44 Kan. 750, 25 Pac. 205;Fenstermaker v. Tribune P. Co., 12 Utah, 439, 43 Pac. 112, 35 L. R. A. 611;Hauger v. Benua, 153 Ind. 642, 53 N. E. 942;Stark v. G. K. Co., 160 Mo. 529, 61 S. W. 670;Kuhn v. Young, 78 Tex. 344, 14 S. W. 796;Myers v. Longstaff, 14 S. D. 98, 84 N. W......
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