Patchell v. Jaqua
| Decision Date | 19 January 1893 |
| Docket Number | 645 |
| Citation | 33 N.E. 132,6 Ind.App. 70 |
| Parties | PATCHELL v. JAQUA |
| Court | Indiana Appellate Court |
From the Delaware Circuit Court.
Judgment affirmed, at costs of appellant.
J. W Ryan, W. A. Thompson and G. W. Cromer, for appellant.
R. H Hartford, F. Winter and J. B. Elam, for appellee.
DAVIS J. LOTZ, J., did not participate in the decision.
This was an action instituted by the appellee against the appellant to recover damages for the publication of a newspaper article alleged to be libelous.
The complaint was in three paragraphs. The basis of each paragraph is the same article. The paragraphs differ as to details and in alleging explanatory and prefatory matter, but are substantially the same.
A demurrer was filed to each paragraph, and overruled.
The case was tried by a jury, and resulted in a verdict in favor of the appellee for nominal damages.
The first question presented is whether the complaint is sufficient. If the action of the court below, in overruling the demurrer to the first paragraph of the complaint, was correct, it will not be necessary to consider the other paragraphs.
The body of the first paragraph is as follows:
"Said plaintiff complains of said defendant and says that heretofore, to wit, June 26, 1891, the defendant composed and published of and concerning the plaintiff, in a certain newspaper published in said county, called Union City Times, a certain false and malicious libel, containing the false, malicious and defamatory matter following:
A. L. Jaqua of Portland (plaintiff meaning) is working a bluff game on the new proposed railroad. Last fall he (plaintiff meaning), by misrepresentations, secured right of way along the line between this city and Portland, and when the C., H. & D. people were ready to proceed with their project, went to Cincinnati to try to "bleed" them into buying him out. His reception was very frigid, and when the Commissioners of Jay County ordered a new election in Penn Township he became desperate and is now working his scheme to defeat the road, and last week had a gang of so called engineers on the line surveying.
'The contractors for the new proposed road, the Chicago, Union City & Cincinnati, do not worry a particle over Mr. Jaqua (plaintiff meaning) and his company that possesses no capital or backing, and next week will proceed to survey the line with competent engineers, and when the tax is voted will commence at once the work of construction.
'If Lon (plaintiff meaning) wants to get in front of the engine he can do so, but his $ 5,000 pile will soon melt if he continues his game.'
"Whereby plaintiff was injured in his reputation in the sum of five thousand dollars, for which he asks judgment and all other proper relief."
The question to be determined is whether the publication of the article, upon which the complaint is based, is libelous or not.
It is a well settled principle that it is not necessary that the words should be slanderous to sustain an action for libel. Johnson v. Stebbins, 5 Ind. 364; Prosser v. Callis, 117 Ind. 105, 19 N.E. 735; Gabe v. McGinnis, 68 Ind. 538 (544).
It is not necessary that a crime should be charged in order to constitute a written publication a libel. Bain v. Myrick, 88 Ind. 137; Gabe v. McGinnis, supra; Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734.
In Johnson v. Stebbins, supra, the following definition of libel was given: "Any publication that tends to degrade, disgrace, or injure the character of a person, or bring him into contempt, hatred, or ridicule is as much a libel as though it contained charges of infamy or crime." Gabe v. McGinnis, supra; Crocker v. Hadley, supra; Hake v. Brames, 95 Ind. 161.
The article begins by accusing the appellee of working a bluff game on the railroad. The words "a bluff game" alone may not be actionable, but they aid to give color and tone to what follows.
The next statement is that he secured a right of way for a railroad through certain misrepresentations, and the meaning of this language is not doubtful.
Misrepresentations mean the making of false or erroneous statements. The article contains the distinct statement that the right of way was obtained from persons having the right to grant it, through misrepresentations. The natural suggestion of the language was that a wrong had been committed, and that the appellee had been guilty of wrong doing. This conclusion is strengthened by the other statements in the article which charge the appellee with trying to "bleed" a railroad corporation into buying from him this property so unlawfully obtained.
The word as here used means "to draw money from, to induce to pay." The article then continues to charge the appellee with putting so called engineers upon the right-of-way mentioned, the suggestion being clear that this was done for the purpose of deceiving and misrepresenting the state of affairs to the voters at the approaching election.
None of the statements or charges are suggestive of honest or fair conduct, but, when considered together as a whole, imply fraud and dishonesty.
Taking the article as an entirety it attributes to the appellee such conduct as would tend to degrade and disgrace appellee in the estimation of those who should read the publication.
The article in question was calculated to deprive the appellee of the benefits of public confidence, to impair him in the enjoyment of general society, and to injure his rights of friendly and business intercourse with others, and, if false, under the decisions in this State, constituted libel. Hake v. Brames, supra; Hartford v. State, 96 Ind. 461; Nichols v. Guy, 2 Ind. 82; DeArmond v. Armstrong, 37 Ind. 35; Prosser v. Callis, supra.
To the complaint in this case, the appellant filed three paragraphs of answer, but he withdrew the general denial, and the case went to trial upon the issues raised by the first and second paragraphs of answer.
The first paragraph contains a long recital of facts, some of which relate to the character, standing and reputation of the appellee, and may be regarded in mitigation, and some, perhaps, as a plea that the publication was privileged, and some in the nature of a plea of the truth of the facts contained in the published article.
Among other averments in this paragraph are the following: "Said plaintiff, who is, and was then, a person utterly unresponsible in a financial way, without money and without influence," etc.
The question is raised by counsel for appellee as to whether the first paragraph of the answer was sufficient as a plea of justification in bar of the action, but the conclusion we have reached, as hereafter stated, renders it unnecessary to determine that question.
The second paragraph is as follows: "And the defendant, for a paragraph of answer in mitigation of damages in said action, says that the plaintiff is--in the counties of Jay and Randolph, in said State, and was when said article was published--a person whose character for morality, integrity and honest dealing was notoriously bad, and plaintiff could not be and was not injured or damaged by said alleged libel."
Complaint is made of the instructions given, and also of those refused.
The evidence is not in the record.
The rule is well settled that where the evidence is not in the record the judgment will not be reversed for refusing to give instructions. If the instructions refused state the law correctly, the Appellate Court will presume that they were properly refused as inapplicable to the case made by the evidence. Sandford Tool, etc., Co. v. Mullen, 1 Ind.App. 204, 27 N.E. 448 (210); Shucks, Admr., v. Fillion, 2 Ind.App. 262 (268).
This presumption can only be overcome by bringing the evidence before the court, or, in the absence thereof, by bringing sufficient of the record of the proceedings of the court below as will affirmatively show that an instruction so refused was applicable to the case made by the evidence.
It is also a well settled general rule that, when the evidence is not in the record, the judgment will not be reversed for the giving of instructions, unless they should be erroneous under any possible state of the evidence. Shucks, Admr., v. Fillion, supra.
An effort, however, has been made to bring the question sought to be presented in this appeal within the exception of the general rule by the following recital in the bill of exceptions: "and that upon the trial the defendant introduced evidence in support of each of his pleas of justification and of the general bad character of the plaintiff."
Among the objections urged to the instructions are, that in the fourth the jury were told in substance that they should determine whether the article imputes a crime, and "if you shall conclude that the language used imputes to the plaintiff the commission of a crime, then the defendant, in order to defeat a recovery in this case, must prove the crime imputed beyond a reasonable doubt."
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