Indianapolis Horse Patrol, Inc. v. Ward

• Decision Date: 17 June 1966
• Docket Number: No. 30930,30930
• Citation: 217 N.E.2d 626,247 Ind. 519
• Parties: INDIANAPOLIS HORSE PATROL, INC., a Corp., Lee Townley, Richard Hunt, Walter C. Shelton, Michael Barth, Ferdinand C. Nolte, Walter E. Shelhorn, Lloyd L. Williams, Floyd M. Stoner and Cecil Byrne, Appellants, v. Perry B. WARD, Appellee.
• Court: Indiana Supreme Court

Page 626

217 N.E.2d 626

247 Ind. 519

INDIANAPOLIS HORSE PATROL, INC., a Corp., Lee Townley Richard Hunt, Walter C. Shelton, Michael Barth, Ferdinand C Nolte, Walter E. Shelhorn, Lloyd L. Williams, Floyd M Stoner and Cecil Byrne, Appellants, v. Perry B. WARD, Appellee.

No. 30930.

Supreme Court of Indiana.

June 17, 1966.

Elmon Williams, John G. Tinder and Albert W. Ewbank, Indianapolis, for appellants.

Leroy K. New, Indianapolis, James Young, of Pogue & Young, Franklin, for appellee.

RAKESTRAW, Chief Justice.

This case is here on transfer from the Appellate Court under the Acts of 1901, ch. 247, § 15, p. 565, being Burns' Ind.Stat.Anno. § 4--209 (1946 Repl.), because three judges of the Appellate Court are of the opinion that the judgment in the court below should be affirmed and three judges are of the opinion that the judgment below should be reversed. Two of the judges of the Appellate Court did not participate in the consideration of this case.

As stated by the appellee in his brief, this action is a suit for 'conspiracy to defame.' The appellee sued the Indianapolis Horse Patrol, Inc., a corporation and joined as parties- defendant eight individuals who were members of the Board of Directors of said corporation. (There were 13 directors in all.) The appellee also joined as party-defendant one Cecil Byrne, who was not a director in said corporation, but was the designated official having general charge of the Shrine Circus.

The appellee's amended complaint is 12 pages in length and contains 35 rhetorical paragraphs. For our purposes, the relevant allegations of the complaint were generally that the plaintiff was a Shriner in the Murat Temple, that he belongs to the defendant Indianapolis Horse Patrol, Inc., which is a uniform unit affiliated with the Shrine, and that he also belongs to the Gatling Gun Club, another uniform affiliated unit. He charges that in the summer of 1958, he questioned the management and use of the proceeds of the Shrine Circus. That later he sold tickets for the Shrine Circus, and that credit for sale of such tickets could be credited to the various uniform affiliated units. He alleges that of the tickets he sold, he allocated a portion to be credited to the defendant Indianapolis Horse Patrol, Inc., and a portion to be credited to the Gatling Gun Club. He then alleges that certain directors of the defendant Indianapolis Horse Patrol, Inc. criticized him for making this allocation. He alleges that at a meeting on March 4, 1959, he was expelled as a member of the Indianapolis Horse Patrol, Inc. He further alleges that there was a second meeting on March 7, 1959, and that at that time a resolution was passed expelling him from membership for 'actions unbecoming a member.' At the latter meeting, certain statements are alleged to have been made by some of the defendants in the presence of the appellee. The complaint then alleges that all of these actions were taken pursuant to a 'conspiracy to defame,' that all of such actions were improper, and that as a result of the action of expulsion, the appellee lost considerable business.

The case was tried before a jury, and a verdict for $68,000 was rendered against all defendants. Judgment was entered on this verdict.

The evidence presented in the case was quite long and involved. For our purposes, it is sufficient to state that there was testimony that the appellee had certain conversations with the defendant Cecil Byrne concerning the disposition of the proceeds of the Shrine Circus in 1958. There was also testimony that he sold a large number of tickets to the Shrine Circus in 1959 and that he allocated a portion of his ticket sales to the Indianapolis Horse Patrol, Inc., and a portion to the Gatling Gun Club. The testimony is in dispute as to whether the allocation of ticket sales to various uniform units was authorized. As a result of appellee's allocation to the Gatling Gun Club, complaint was made by certain of the defendant-directors. They met on March 4, 1959, and at that time, without formal action, directed the treasurer to return to the appellee a check covering his membership charge and dues. Again on March 7, 1959, there was a meeting of all but one of the directors. Certain remarks were made in this meeting, and a resolution was adopted expelling the appellee as a member of the Horse Patrol if he should refuse to resign. When this was communicated to the appellee, he was told that if he did not resign expulsion would hurt him in his business and damage his reputation.

In determining this cause, it is fundamental that there is no cause of action for conspiracy as such. The cause of action is for damage resulting from a conspiracy. Miller, etc. v. Ortman, etc., et al. (1956), 235 Ind. 641, 136 N.E.2d 17; Grimm v. Baumgart (1951), 121 Ind.App. 626, 96 N.E.2d 915, 97 N.E.2d 871.

It is also fundamental, that a conspiracy is a combination of two or more persons, by concerted action, to accomplish an unlawful purpose or to accomplish some purpose, not itself unlawful, by unlawful means. Holloway v. Thompson (1942), 112 Ind.App. 229, 42 N.E.2d 421; Karges Furniture Co. v. Amalgamated, etc., Union (1905), 165 Ind. 421, 75 N.E. 877, 2 L.R.A.N.S., 788; Miller, etc. v. Ortman, etc., et al., supra.

In this case, the theory of the plaintiff's complaint was that the conspiracy was a conspiracy to defame the plaintiff. If the complaint is to state a valid cause of action, it therefore follows that the conspiracy must have been a conspiracy to libel or slander the plaintiff. Otherwise the allegations of the plaintiff's complaint would be lacking in the unlawful purpose or unlawful means which are necessary to a conspiracy. And since defamation is the subject of the conspiracy charged, the law of libel and slander would be applicable.

On appeal, there are many specifications of error. The appellants strongly maintain that there is insufficient evidence to sustain the verdict of the jury and the judgment of the trial court. Taking all the evidence, there is grave question of the sufficiency. The judgment was against the Indianapolis Horse Patrol, Inc. and nine individual defendants. As to most of the individual defendants, the only evidence involving them is that they attended the directors' meeting, and voted for the expulsion of the plaintiff. It requires a considerable stretch of the imagination to infer that attending a meeting and voting alone implies a knowledge of and participation in a conspiracy which would involve the making of oral or written false statements. However, in view of our decision on the instructions tendered in this cause, it is not necessary for us to determine the sufficiency of the evidence.

An examination of both the allegations of the plaintiff's complaint and the evidence indicates that all matters which could be relied upon to constitute the defamation, which is the subject of the conspiracy charged, were in connection with the Shrine organization and the Indianapolis Horse Patrol, Inc. The allegations and the evidence involve the operation of the Shrine Circus and the meetings of the Board of Directors of the Indianapolis Horse Patrol, Inc. Under these circumstances, it is clear that a qualified privilege attaches to any statements and communications.

The rule is well stated in 18 I.L.E. Libel...