Mosier v. Stoll

• Court: Indiana Supreme Court
• Writing for the Court: Elliott, C. J.
• Citation: Mosier v. Stoll, 119 Ind. 244, 20 N.E. 752 (Ind. 1889)
• Decision Date: 05 April 1889
• Docket Number: 13,621
• Parties: Mosier v. Stoll et al

20 N.E. 752

119 Ind. 244

Mosier v. Stoll et al

No. 13,621

Supreme Court of Indiana

April 5, 1889

Petition for a Rehearing Overruled June 4, 1889.

From the LaPorte Circuit Court.

Judgment affirmed.

J. M Vanfleet, for appellant.

A Anderson, M. H. Weir and D. J. Wile, for appellees.

OPINION

Elliott, C. J.

The appellant's complaint, as it was originally framed, charged that the appellees had published a malicious libel, intending to injure the appellant, and "to hold him up to public scorn, contempt and ridicule." The entire article was set out, and the complaint, as it was first framed, seemed to charge that the whole article was false and libellous. At a subsequent point in the proceedings, the appellant withdrew from his complaint all specifications of the falsity of the charges contained in the article, except one. The record thus exhibits the withdrawal: "Said plaintiff also now dismisses and withdraws from the several paragraphs of the complaint each and every charge of libel against said defendants except that part of the article published, and the words of the said paragraph of the complaint charging, that the plaintiff fraudulently appropriated the money and funds of said society to his own use, as in said paragraph set forth and alleged, hereby intending and confining the charge to said specific accusation." In order to understand the questions presented, it is necessary to set forth almost in full the article which the appellant charges was libellous. It reads thus:

"Though the 'Old Peoples' Mutual Benefit Society,' of Elkhart, may have 'glib talkers' in the field to take in the unwary, it is difficult to comprehend why any person of good sense can fail to discern the self-evident fraudulent character of this institution. The entire modus operandi upon which its business is conducted is suggestive of the snide performance. The 'O. P.' is nothing more and nothing less than an enterprise for putting money into the pockets of its managers.

"We have before us a little pamphlet issued by the 'O. P.' in 1884, containing the first annual report of that organization. On page 7 will be found the 'List of Losses Paid.' Below is a list of nine persons to whom losses were paid during the period named, all of them being residents of the State of Michigan. We give names and residence, the amount alleged and advertised to have been paid, and directly opposite the amount actually paid:

Amount

Amount

Claimed

Actually

Paid.

Paid.

Perry Wells, Charlotte

$ 1,250

$ 900

Alex. Adams, Homer

200

Wm. B. Walz, Marshall

750

600

Olive Hogle, Partelle

750

525

L. J. Smith, Charlotte

1,500

918

H. A. Lewis, Homer

1,000

125

F. B. Walworth, Reading

2,000

1,200

A. E. Bartholomew, Reading

500

450

F. G. Reynolds, Battle Creek

1,500

850

$ 9,500

$ 5,768

"The table from which the above names are copied contains the names of sixteen persons to whom losses were paid. Of these sixteen persons we have the exact amounts actually paid to nine thereof. Messrs. Mosier and Lumbert advertise to the world that they paid these nine persons the aggregate sum of $ 9,500, when, in point of fact, these parties received but $ 5,768, a difference of $ 3,732.

"Now, to whom did this snug little sum of $ 3,732 go? To the managers of the 'O. P.' How do they manage this little snide operation? In this manner: The death of an insured person is reported to the company. Notices of assessment are sent out to the policy-holders. The assessment blanks are sent to the agents, or collectors, in the different localities in which the policy-holders reside. As these assessments are paid the amount is credited on the agent's blanks, who subsequently makes his return to the company at Elkhart. Now, instead of entering up on the books of the company all of the assessments paid, the ingenious and benevolent Mr. Lumbert makes a calculation just how much he ought to pay on such and such a loss, and then enters on the books just enough assessment returns to aggregate the amount he feels disposed to pay over to the insurer. The concern is so managed as to afford a fair pretext for delay. The insurer makes regular inquiries of the agent, and the expected answer failing to materialize, he finally concludes to make a journey and personally interview the philanthropic Lumbert. This good Samaritan invites the hopeful and eager insurer to figure up the amount credited on the books in favor of this particular policy. Let us take the case of Mr. Reynolds. His policy called for $ 1,500. Mr. Lumbert says, in his bland manner: '$ 850 is all that has been realized on this policy; you have paid in only so and so much; you make a good thing out of this; you ought to be satisfied with such a handsome return.' The insinuating manner of Mr. Lumbert, and the overwhelming logic of Hon. Cyrus F. Mosier rarely fail to have the desired effect; the insurer receives a check for the amount agreed upon, signs a receipt for the full amount of the policy, surrenders the latter, and goes on his way rejoicing. Lumbert and Mosier then chuckle over the net profit made on this policy, and gleefully figure up the proportion of their individual swag. They next utilize the receipt of their latest victim to pull the wool over the eyes of gullible people in localities where their mode of doing business is not understood. A little later on the omitted assessment payments are also entered on the books, so that the record may be made complete for official inspection.

"Occasionally some fellow will become obstreperous, and threaten to 'blow up the concern.' If he chances to be a bright, smart sort of a fellow, with plenty of grit in his make-up, Lumbert and 'the other boys' will conclude that discretion is the better part of valor and come down with their ducats. But these cases are comparatively rare. Under the law no insurance can be drawn unless the would-be beneficiary has an insurable interest in the person insured. A goodly number of the policies issued by the 'O. P.' are of an unlawful character, the insurer either having no insurable interest in the person insured, or the insured person not knowing anything about a policy having been taken out on his or her life. In cases of this kind Lumbert & Co. hold a good hand. They can threaten to have the insurer arrested for forging the name of the insured person, and thus scare the insurer into the acceptance of whatever sum the 'O. P.' managers may set apart for the particular case."

It seems quite clear to us that this withdrawal completely deprived the complaint of validity, for we find no charge in the article that "the plaintiff fraudulently appropriated the money to his own use." The charge is that the sum of $ 3,732 went to the managers of the society. The parts of the article directly bearing upon the point under immediate mention are these: "Now, to whom did this snug little sum of $ 3,732 go? To the managers of the O. P." "Lumbert and Mosier then chuckle over the net profits made on the policy, and gleefully figure up the proportion of their individual swag." These statements, when taken in connection with the other statements of the article, do not charge the appellant with fraudulently appropriating the money of the society, but with fraudulently obtaining money for the society and getting their share of it as members or managers. If we are right in this conclusion, then, as there was no cause of action, there was nothing upon which a verdict could be founded. But, waiving a decision of this point, we proceed to examine the other questions presented by counsel.

We have no doubt that the court did right in admitting evidence of the business methods and practices of the society, for, conceding that there is a sufficient complaint, the defendants, under their justification, had a right to get all the facts before the jury. If the manner of doing business was such as to enable the managers to obtain money and divide profits as charged, then the defendants had a right to evidence of that fact, for it tended to show that the charge was true. If, however, as appellant argues, the charge in the article is that he was guilty of embezzling the funds of the society, the evidence was competent, for it was necessary for the jury to have all the facts in order to determine whether the charge was true or false. It would not excuse the appellant if other agents or officers united with him in fraudulently appropriating the money of the society of which he was the president, for if the money belonging to the society was fraudulently appropriated, the appellant was guilty as charged, although he secured the money as one of the managers of the society. It was not necessary to prove by direct evidence that the appellant knew of the corrupt methods adopted, as that might be established by inference.

The general denial was one of the answers, and, under this plea the defendants had a right to give evidence in mitigation of damages, and the appellant's counsel is, therefore, in error in assuming that the only evidence the defendants were entitled to give was such as sustained the pleas of justification. O'Conner v. O'Conner, 27 Ind. 69; Waugh v. Waugh, 47 Ind. 580. Circulars issued by the officers of the society, even if they did not tend to prove matters in justification, might tend to mitigate damages, for, if the defendants, in publishing the article in their newspaper, acted from an honest motive to protect the public against impostors, or upon information tending to show that the plaintiff was engaged in a corrupt scheme to obtain and appropriate money for his own profit, this fact would rebut malice, and thus reduce the damages. Odgers Libel and Slander, 301; Smith v. Scott, 2 Car. & Kir. 580; Davis v. Cutbush, 1 F. & F. 487; Duncombe v....