Patchell v. Jaqua

Citation6 Ind.App. 70,33 N.E. 132
PartiesPATCHELL v. JAQUA.
Decision Date19 January 1893
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Delaware county; O. J. Lotz, Judge.

Action by Alonzo L. Jaqua against George W. Patchell for libel. From a judgment for plaintiff, defendant appeals. Affirmed.

George W. Cromer, John W. Ryan, and William A. Thompson, for appellant. Winter & Elam and R. H. Hartford, for appellee.

DAVIS, J.

This was an action instituted by appellee against 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 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, 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 O. 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 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. Rep. 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. Rep. 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 charge of infamy or crime.” Gabe v. McGinnis, supra; Crocker v. Hadley, supra; Hake v. Brames, 95 Ind. 161. The article begins by accusing 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 appellee had been guilty of wrongdoing. This conclusion is strengthened by the other statements in the article, which charge 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 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 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 of this state, constituted libel. Hake v. Brames, supra; Hartford v. State, 96 Ind. 461;Nichols v. Guy, 2 Ind. 82;De Armond 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 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 irresponsible 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 answer was sufficient as a plea of justification in bar of the action, but the conclusion we have reached, as hereinafter 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 instructions given and 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. Tool, etc., Co. v. Mullen, 1 Ind. App. 204-210, 27 N. E. Rep. 448; Sheeks v. Fillion, 3 Ind. App. 262-268, 29 N. E. Rep. 786. This presumption can only be overcome by bringing the evidence before the court, or, in the absence thereof, by bringing sufficient of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT