Henry v. Moberly

• Decision Date: 01 November 1898
• Citation: 23 Ind.App. 305,51 N.E. 497
• Parties: HENRY v. MOBERLY.
• Court: Indiana Appellate Court

23 Ind.App. 305

51 N.E. 497

HENRY

v.MOBERLY.¹

Appellate Court of Indiana.

Nov. 1, 1898.

Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Action by Mary R. Moberly against James R. Henry. There was a judgment for plaintiff, and defendant appeals. Reversed.

Black, J., dissenting.

Willis Hickam, Wm. R. Harrison, J. C. Robinson, George A. Knight, and James A. McNutt, for appellant. I. H. Fowler, D. H. Downey, John R. East, and Holliday & Byrd, for appellee.

WILEY, J.

In June, 1889, appellant was a member of the board of school trustees of the town of Gosport, and was its treasurer, and had been for many years prior thereto. Appellee had been employed by said school trustees as a teacher in the public school of said town, and did teach therein during the school year of 1888 and 1889. At a meeting of the board held on the 21st day of June, 1889, called specially to consider the application of appellee to be re-employed for the next ensuing school year as a teacher, appellant, as a member of said board, filed a written protest against so employing appellee. The majority of said board refused to consider the objections therein urged to her employment, and did favorably consider appellee's application, and did contract with her to teach in said school for the next ensuing year. After such protest was filed, and appellee was re-employed as indicated, appellant withdrew the protest filed by him, and locked it up in his safe, until he was required by the court to produce it for inspection. Appellant did not publish or circulate said protest in any way other than to submit it to said school trustees, and, when it was submitted, no one was presentbut the three members of said board. It appears from the record that, at a previous meeting of said board, appellant stated his objections to the re-employment of appellee, which objections were stated orally, and were essentially the same as those embraced in the written protest filed June 21, 1889; and, at the request of the other two members of the said board, appellant reduced his objections to writing. The “protest,” as it is designated in the record, is quite lengthy; but, as only a certain part of it is relied upon as libelous, we need not set it out in full in this opinion. It is headed as follows: “Gosport, Ind., June 21st, 1889. George P. Lee, President, A. H. Wampler, Secretary, Gosport School Board-Gentlemen: I, James R. Henry, treasurer of said school board, submit the following as my protest against the employment of Mary Moberly as teacher in Gosport school for the ensuing year.” In this protest the appellant stated seven different reasons why he objected to the employment of appellee, the second of which is as follows: “(2) For claiming wages not due her, and in making statements, which, in my opinion, she knew to be false, in order to obtain them.” Upon this language in the protest, appellee sued appellant for libel, and charged in her complaint that said language was uttered and published by filing it with said board, etc. As to the publication of these words the complaint avers that they were false and libelous and without probable cause, and, in the language of the complaint, “thereby charging and intending to charge that said plaintiff [appellee] * * * had willfully and corruptly lied concerning the amount of money due her, and that she was a liar.” The cause was put at issue by an answer admitting the publication of the words charged, but averring that they were true, and reply in general denial. In other words, the answer was a justification. Appellant's motions for judgment in his favor on the special verdict, that the court render judgment in favor of appellee for nominal damages only, and for a new trial, were respectively overruled, and proper exceptions reserved. The assignments of error challenge these several rulings; also, the overruling of appellant's demurrer to the complaint and the sufficiency of the complaint.

This is the second appeal in this case. See Henry v. Moberly, 6 Ind. App. 490, 33 N. E. 981. In the former appeal this court held that the communication, or the “protest,” sued upon, was privileged. In the former appeal the judgment was reversed, because of the insufficiency of the complaint. The complaint was then amended, and appellant again urges that it is still insufficient; but, upon a careful examination of the opinion upon the former appeal, we think that the objections urged against the complaint are obviated by the amendments, and substantially conform to the rule announced therein. Hence the rule applies that the law as declared in the former appeal is the law of the case in a subsequent appeal. There was no error in overruling the demurrer to the amended complaint.

The other alleged errors may be considered together. Before further discussing the questions involved, we deem it proper to state in narrative form the material facts, as shown by the special verdict. The jury found that appellee was a school teacher; that she had taught in the public schools of the town of Gosport for the two school years immediately preceding June 20, 1889; that she was duly licensed to teach the ensuing year; that the school board of said town was composed of George P. Lee, A. H. Wampler, and appellant; that Lee was president, Wampler secretary, and appellant treasurer, of said board; that on the evening of June 20, 1889, a majority of said board voted to employ appellee as such teacher for the ensuing year; that appellant voted for another person for the same position; that, at said meeting, appellant stated orally to said board his objections to the employment of appellee; that thereupon Wampler and Lee requested appellant to put his objections in writing, and present the same at a subsequent meeting; that appellant agreed to do so, and a meeting of said board was called to meet at the residence of Wampler the following day, at 1 o'clock p. m., to receive and consider the same; that said board did meet at the time and place designated, in the parlor of the residence of said Wampler; that at said meeting there were no persons present but the members of said board; that, when said meeting was called to order, appellant presented his objections in writing; that one of the members read the same to the other members of said board; that the second specification of said protest was as follows: “For claiming wages not due her, and making statements she knew to be false in order to obtain them;” that, by the use of such words, appellant intended to charge that appellee willfully and corruptly lied; that he thus intended to charge that appellant was a liar; that said language so written and published was to gratify a feeling of personal ill will and revenge entertained by appellant towards appellee; that he wrote and published said language with a corrupt motive, to injure the good name of the appellee; that he did so in bad faith; that he knew it was untrue; that the words were written and published maliciously, to injure the appellee; that the said language was without probable cause; that appellee did not ask or claim of said board more money than was due to her; that, at the end of the school year 1888-89, there was due her $85, which appellant paid to her on or about May 20, 1889; that, for teaching in said school, she was to receive $35 per month; that the language sued on, and contained in the statement filed with said board, was written by appellant for the purpose of reading to Lee and Wampler, as members of said board; that June 21, 1889, had been fixed for finally hearing and determining appellee's application to teach in the Gosport schools; that said meeting was called for the express purpose of enabling the appellant to file a written statement of his reasons and objections against the further employment of appellee, and for the purpose of considering the objections by appellant; that the only publication of said objections by appellant was made to said Lee and Wampler, while said school board was in session, considering said application; that the sole purpose of appellant in preparing and publishing the language sued on was to make known to the other members of said board his objections to the fitness of appellee to so teach, and to prevent her further employment; that said “protest” was prepared by appellant as a member of said school board, and by him delivered to Lee and Wampler, the other two members of the board, while said board was convened, as his protest against the further employment of appellee as a teacher in said school; that the three members of said board were the only persons who saw or heard said instrument when it was so read and published; that, before said meeting at which said protest was read, Lee and Wampler had been fully informed as to the contents of the charge sued on; that, as soon as said “protest” was so read and published, the said Lee and Wampler at once decided that said charge did not contain anything that affected the character or fitness of appellee to teach in said schools, and did then and there employ her to teach for the ensuing year; that they placed her in said school at the beginning of the following school year; that the language complained of was written and published in reference to the matter of appellee's knowledge, and the claims made by her in reference to the amount of wages claimed by her to be due her at the time of her settlement with appellant as treasurer, at the end of the school year of 1888-89; that immediately after said protest had been published, as aforesaid, appellant took the same into his possession, locked it up in a safe in his bank, where it remained until after this action was commenced, when it was produced by order of court, and no other person or persons ever saw it; that when appellee made her final settlement with appellant for her salary, on or about May 20, 1889, she did not claim or assert that she was to receive more than $35...