Indianapolis Journal Newspaper Company v. Pugh

• Decision Date: 14 April 1893
• Docket Number: 900
• Parties: INDIANAPOLIS JOURNAL NEWSPAPER COMPANY v. PUGH
• Court: Indiana Appellate Court

33 N.E. 991

6 Ind.App. 510

INDIANAPOLIS JOURNAL NEWSPAPER COMPANY v. PUGH

No. 900

Court of Appeals of Indiana

April 14, 1893

From the Hamilton Circuit Court.

Judgment reversed.

F Winter, J. B. Elam, G. W. Stephenson and W. R. Fertig, for appellant.

W. R West, W. A. Kittenger, L. M. Schwinn, T. J. Kane and T. P Davis, for appellee.

REINHARD, C. J. DAVIS and LOTZ, J. J., took no part in the decision of this case.

OPINION

REINHARD, C. J.--

In the court below the appellee brought this action and recovered of the appellant the sum of $ 3,000 for libel. The overruling of a demurrer to the complaint is the first alleged error upon which the appellant seeks to have the judgment of the lower court reversed. The publication complained of is as follows:

"EVANGELIST WOODWORTH'S BUSINESS MANAGER PROVES TO BE A RASCAL.

"(Special to the Indianapolis Journal.)

"MUNCIE, October 19.--Almost three weeks ago Mrs. Maria B. Woodworth, an evangelist of some note, began a series of meetings at this place. She was accompanied by a number of persons who were prominent workers at each service, and who were the loudest shouters and offered the longest prayers. Among this number was one Thomas Dempsey, a rather shrewd, intelligent looking fellow. He appeared in the role as business manager for the evangelistic aggregation. He preceded the company, made contracts, and arranged for holding the camp meetings, and then returned to assist in the work. Yesterday closed Mrs. Woodworth's engagement at this place, and they left last evening for Indianapolis. Quite a sensation was created in this city just prior to their departure by the arrival of a little lady, handsome and intelligent, who claims to be, and is, the legal wife of Dempsey. Dempsey, however, has been for the past five months traveling with a woman who he alleged was his wife. Mrs. Dempsey says her husband left her about five months ago, since which time she has been unable to hear from him. She lives with her parents near Fairmount, and with them enjoys the esteem of all. Her parents are among the most reputable people in that locality. While the Woodworth combination are holding meetings near her home he claims to have been converted, and afterward, when they were conducting meetings at Windfall, he joined them, and since that time has been continuously with the party, and away from his wife. Mrs. Dempsey says these people have tried to deceive and delude her in all the ways possible. Her letters, asking information as to his whereabouts, would either be returned to her or remained unanswered. She says she will proceed at once to procure a divorce from him. She returned to her home by way of Anderson this afternoon. Dempsey and an Italian, who is a member of the evangelistic party, sneaked out of the city early this morning. A special to the 'News,' of this city, this evening, from Anderson, says the deserted wife of Dempsey, the camp meeting manager, arrived in the city at 10 o'clock this morning. The affrighted camp meeting manager, who has been dodging her for two days, had men watching the depot, and when she came in he was notified, and then lost no time in securing a carriage and leaving the town. Evidently he fears arrest. The alleged Mrs. Dempsey was sent to Farmland last night, after being turned out of a hotel here. It is explained that Mr. and Mrs. Woodworth knew nothing of any suspicious relations existing between these parties, and it is to be hoped that this is true. At any rate, the revelation has created such a sensation as Muncie has not known in a long time."

Appellant's counsel contend that this publication, if it is libelous at all, is so only as to Dempsey, but not as to the appellee. In this view we are unable to concur. The complaint charges, after the usual introductory panegyric on the plaintiff's good character, that the defendant was publishing and editing a daily newspaper in Indianapolis, called "The Indianapolis Journal," which has a general circulation; that it published said matter, in its paper of a certain date, of and concerning the plaintiff and her character for chastity, and for the purpose of injuring the plaintiff and bringing her character for chastity into disrepute, and to degrade and disgrace her, and bring her into contempt and ridicule, and that the matter published was false, and was published maliciously. It is further alleged that the woman with whom it was charged Dempsey traveled, and whom he held out as his wife, was meant to be the plaintiff; that the expression, "the alleged Mrs. Dempsey was sent to Farmland last night after being turned out of a hotel here," was meant to refer to the plaintiff, and that she had been turned out of a hotel at Muncie, Indiana, and that by the words "suspicious relations existing between these parties" it was intended to charge that the plaintiff and Thomas Dempsey had been cohabiting together as husband and wife, and that plaintiff was guilty of adultery with said Dempsey, a male person and married man, etc., and that the article was meant to be understood, and was understood, to charge that plaintiff and Dempsey had been living and cohabiting together as husband and wife, and that plaintiff had been guilty of adultery with him, and the "revelation" spoken of in the article as creating a "sensation," was to the citizens of Muncie and vicinity, and implied, and was meant to charge, that they had learned that plaintiff and Dempsey had been traveling and cohabiting together as husband and wife for five months, and had committed adultery during said time, which created a sensation in said city of Muncie. Other averments of the complaint serve to identify the plaintiff as the person referred to in the publication, and to show the application of the words and the meaning they were intended to convey, and that they were so understood.

The demurrer admits every allegation that is well pleaded. In this case it admits that the words were published of and concerning the plaintiff, and that they were false. If they are such as tend to degrade, disgrace, or injure the character of the plaintiff, they are sufficient, even if they do not impute a crime. Doan v. Kelley, 121 Ind. 413, 23 N.E. 266; Prosser v. Callis, 117 Ind. 105, 19 N.E. 735; Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734.

To charge a female of previous good repute for chastity (which she is presumed to possess, without any averment of the fact), with having traveled with a married man for five months, as his wife, and that she was turned out of a hotel, and that the revelation had caused a sensation in the community where it transpired, is actionable libel. The complaint was sufficient, and the demurrer was properly overruled.

The appellant filed several answers, among them being a plea of justification. Subsequently all the answers, but that of justification, were withdrawn. The appellee filed a reply in denial, and, upon the issues thus joined, the cause was tried by a jury. A large number of causes are specified in the motion for a new trial.

Upon the trial evidence was introduced by the appellant, tending to show that, previous to the publication of the alleged libelous matter, the appellee associated with another female who worked with her at the same hotel; that the two roomed together, visited a saloon and drank intoxicating liquors together, and that they walked the street together; and, at one time, were dressed in men's attire. The appellant further introduced evidence tending to prove that appellee's reputation for morality in the neighborhood was not good at or previous to the time of the alleged publication. There was also evidence from the same source tending to show that appellee associated with a certain man (whose name we need not set out here). The appellant offered to prove that these persons, with whom it was alleged the appellee associated and consorted, were persons of bad reputation for morality, but over appellant's exception the evidence was rejected.

We do not think there was any error in this ruling. True, the appellee's character was put in issue. But this can be proved only by general reputation, and not by specific acts of immorality, wholly disconnected from the acts charged in the publication. Townshend on S. and L., (4th ed.), p. 670, section 407. The association, by the appellee, with males or females of bad repute, is a specific act, and is not competent evidence of the general reputation of appellee.

Nor did the fact that the appellee had testified, while on the stand, in response to a question by her counsel, that the female with whom she consorted was a decent, respectable girl, so far as she knew, and that she knew nothing against them, render the evidence competent in rebuttal. The appellee should have objected to the question when it was asked. The mere fact that an attorney is, without objection, permitted to ask an irrelevant question, and obtain an answer to it, can not be used to open the doors for the admission of evidence of facts purely collateral to the issues. Such a course would tend to make the litigation almost interminable, and cause the fundamental and paramount issues of a cause to be lost sight of. There was no error in the ruling.

Over appellant's objection and exception, the court allowed the appellee to testify that her father was in the army three years; that he came home from the army, at the close of the war, afflicted with consumption, and died of that disease. It is earnestly contended that this ruling was erroneous.

No argument is made by appellee's counsel, in their able and exhaustive brief, in favor of the validity of this testimony, and its irrelevancy to the issues is practically conceded.

If it be claimed that the appellee, in response to the proof of...