Henderson v. Evansville Press, Inc., 18864

• Decision Date: 28 May 1957
• Docket Number: No. 18864,18864
• Citation: 142 N.E.2d 920,127 Ind.App. 592
• Parties: Charles E. HENDERSON, Appellant, v. EVANSVILLE PRESS, Inc., Appellee.
• Court: Indiana Appellate Court

Page 920

142 N.E.2d 920

127 Ind.App. 592

Charles E. HENDERSON, Appellant, v. EVANSVILLE PRESS, Inc., Appellee.

No. 18864.

Appellate Court of Indiana, In Banc.

May 28, 1957.

Rehearing Denied June 28, 1957.

Transfer Denied Sept. 17, 1957.

Rice & Cheatham, Marion J. Rice, Bert C. Cheatham, Jack N. VanStone, Evansville, Charles E. Henderson, Evansville, pro se, for appellant.

Isidor Kahn, Harry P. Dees, Arthur R. Donovan, Robert Kahn, Willard C. Shrode, Evansville, Kahn, Dees, Donovan & Kahn, of counsel, Evansville, for appellee.

KELLEY, Presiding Judge.

Action to recover damages for libel. Demurrer to complaint was sustained.

The appellant instituted action against appellee to recover damages alleged to have been suffered by him personally and in his profession as an attorney, resulting from the publication of an asserted libelous communication made by the Judge of a Circuit Court and published by appellee in its newspaper, Evansville Press.

The material parts of the complaint, twice amended, were, in substance, as follows: That appellant, on March 13, 1954, was a duly licensed, practicing attorney in Vanderburgh County, Indiana; that the appellee publishes a newspaper (Evansville Press) with daily circulation in Vanderburgh and three neighboring counties; that on March 13, 1954, appellee published on the front page of its newspaper 'an article of news' which we quote from appellant's brief:

'Reeves Says Lawyer's Plea for Special Judge 'Shysterism.'

'Circuit Judge Ollie C. Reeves today termed a lawyer's request for a special judge in a case scheduled for trial by jury on Monday as 'One of the lowest froms of shysterism.' The rebuke, one of the strongest court attaches could recall, was made against Attorney Charles E. Henderson. Request for a jurist to replace Judge Reeves was made in writing and signed by Alson H. Elder, 39, whose trial on a second degree burglary, has been set for Monday. Elder 1430 W. Franklin St., claimed he had discovered only Friday that Judge Reeves would be prejudiced in his case. To Judge Reeves' blast, Mr. Henderson reported that a continuance had been denied. But Judge Reeves said that wasn't so. He said Mr. Henderson's law partner declined to file a motion for continuance and had added that the defendant was prepared to try the case Monday. He said this took place Thursday. Mr. Henderson said that wasn't his understanding. 'Just recently I was prepared to try a case and the state, on the day of the scheduled trial, asked and was granted a continuance without any notice having been given to me,' he added. Prosecutor Paul Wever rose and said that he asked for a continuance on that occasion because an important witness hadn't been summoned through no fault of his. Under Indiana's change of venue law, a lastminute request for a special judge must be granted if the defendant only then learns of a judge's prejudice. Judge Reeves granted Mr. Henderson's request, and Attorney William Welborn was selected to hear the same. He did not accept today, and the 24 jurors that were to have heard the case Monday are to be notified that the trial is postponed.'

that said words and phrases contained in said article are libelous, slanderous, false, and defaming to appellant, as an individual and a practicing attorney and member of the bar of the State of Indiana; that said publication was made by appellee with malice toward appellant; that at the time said statements were made by said Ollie C. Reeves, the latter had no jurisdiction of the case then pending before him 'due to the fact that a change of venue in proper form had been immediately filed in that case'; that said article was not a 'fair and true report of any legal proceedings whatsoever, but was an exaggerated and sensational article concerning statements of Judge Ollie C. Reeves * * * which statements were completely unrelated to any legal issues before said Judge'; that as the result of said publication appellant was damaged in excess of $100,000.

The real question presented by appellee's demurrer is whether the complaint on its face states facts which establish that appellee's publication or news article was made on an occasion of privilege and, if so, whether advantage thereof is available to appellee on demurrer.

The complaint alleges that the 'words and phrases' contained in the newspaper article are 'libelous, slanderous, false and defaming' to appellant. The memorandum to appellee's demurrer asserts that the complaint on its face shows the article is not libelous or defamatory of appellant 'because the article does not say or quote the said Judge as saying that the plaintiff was a shyster or guilty of shysterism.' The article, as set forth in the complaint, states that the Judge 'termed' a lawyer's 'request' for a special judge as 'One of the lowest forms of shysterism' and that the 'rebuke' was made 'against' the appellant, by name.

The language reported is plain and unambiguous and susceptible of only one construction. Therefore, the meaning and construction of the language used, and whether or not it is defamatory, is a question of law for the court. 53 C.J.S. Libel & Slander § 223, p. 335. It becomes necessary to make such determination, for if the language reported is not libelous or defaming, then it is evident that the complaint does not state a cause of action for libel. Snavely v. Booth, 1935, 6 W.W. Harr. 378, 36 Del. 378, 176 A. 649; Corbett v. American Newspapers, 1939, 1 Terry 10, 40 Del. 10, 5 A.2d 245; Lewis v. Daily News Co., 1895, 81 Md. 466, 32 A. 246, 29 L.R.A. 59; Hughes v. New England Newspaper Pub. Co., 1942, 312 Mass. 178, 43 N.E.2d 657.

In practical contemplation, to say that a lawyer's request for a change of venue or his act of filing an affidavit (request) for a change of venue is a form of shysterism is an imputation that in so doing he is resorting to the practices of a shyster. A 'shyster', as applied to an attorney, in common understanding means that he is an unscrupulous practitioner who will carry on his legal work in a dishonest way and will resort to sharp and tricky practices to achieve his end and purpose. To charge an attorney with being a shyster is defamatory and libelous per se, Bailey v. Kalamazoo Pub. Co., 1879, 40 Mich. 251; Gribble v. Pioneer Press Co., 1885, 34 Minn. 342, 25 N.W. 710, and to charge that his certain request or act made or done in court in connection with a legal action therein is a form of shysterism is, we think, no less defamatory and libelous.

Ordinarily, the defense of privilege is not available on demurrer. 53 C.J.S. Libel and Slander § 182 b, p. 285; 51 A.L.R.2d (Annotation) 557, et seq., § 4(a) and (b), citing Henry v. Moberly, 1893, 6 Ind.App. 490, 33 N.E. 981. However, where the complaint on its face sets forth all the facts essential to the defense of privilege, the issue may be raised by demurrer. 53 C.J.S. Libel and Slander § 182 b, p. 286; 51 A.L.R.2d (Annotation) 558 et sea., § 4(a). Whether the facts set forth in a complaint show that the occasion of the alleged libel was one of privilege is for the court, Henry v. Moberly, supra, and the determination thereof involves primarily questions of substantive law.

The complaint now before us contains, we think, fact allegations sufficient to show that appellee, on March 13, 1954, published on the front page of its newspaper an article of news embodying a statement by a named 'Circuit Judge' that a lawyer's request for a special judge in a case scheduled for jury trial 'on Monday' was 'One of the lowest forms of shysterism' and that such statement, referred to in the news article, as a 'rebuke', was made against appellant. It is further alleged that the 'words and phrases' in the news article, which would, of course, include the said statement of the 'Circuit Judge', were libelous of and defaming to appellant; that at the time said statement was made said judge had no jurisdiction of the case pending before him 'due to the fact' that a change of venue in proper form had been 'immediately' filed in 'that' case; that the news article was not a 'fair and true' report of any legal proceedings, but was 'exaggerated and sensational' concerning the statement of the said judge; that the statement was 'completely unrelated to any legal issues' before said judge; and that 'the publication' of the news article was made 'with malice' toward appellant.

The news article referred to has been heretofore set forth in haec verba as it appears in the complaint. It is obvious from the tenor of the whole complaint that unless the news article itself affords the facts essential to the claimed privilege, the demurrer is not well taken. In the progress of our opinion it must be firmly remembered that we are confined solely to the facts as stated in the complaint and that no intendments can be drawn therefrom in favor of the demurrer, which, for the purpose thereof, admits all well pleaded facts and all reasonable and logical intendments arising from the facts alleged, Walker v. Ellis, 1955, 126 Ind.App. 353, 129 N.E.2d 65, 67, and the facts to be as alleged. Swafford v. Kitch, 1875, 51 Ind. 78, 80.

In order for the complaint to establish in appellee the defense of privilege in publishing the news article, it must appear, among other essentials, that the 'Circuit Judge' made the alleged communication in the course of his official duties and while in the exercise of a judicial function, and that the report presents fully, fairly, and accurately an impartial account of the judicial proceedings. 53 C.J.S. Libel and Slander § 127 a, note 95, p. 205.

Appellee contends that 'The report * * * shows on its face that it was a true, full, fair and impartial account of the proceedings'. But we have difficulty in fully appreciating this proposal. That part of the news article which reads: 'The rebuke, one of the strongest court attaches could recall, was made against Attorney Charles E. Henderson' does not appear to be any...