Shulse v. McWilliams

• Decision Date: 07 November 1885
• Docket Number: 11,792
• Citation: 3 N.E. 243,104 Ind. 512
• Parties: Shulse v. McWilliams
• Court: Indiana Supreme Court

3 N.E. 243

104 Ind. 512

Shulse v. McWilliams

No. 11,792

Supreme Court of Indiana

November 7, 1885

Petition for a Rehearing Overruled January 9, 1886.

From the Hamilton Circuit Court.

The judgment is affirmed with costs.

C. S Wesner, F. M. Charlton, T. W. Lockhart, T. J. Kane and T. P Davis, for appellant.

T. H Palmer, for appellee.

OPINION

Howk, J.

In this case the appellee sued the appellant in the Boone Circuit Court to recover damages for slander. As originally filed, appellee's complaint contained four paragraphs, but, before the trial of the cause, she dismissed her suit as to the second and third paragraphs of her complaint. Issues were joined upon the first and fourth paragraphs of complaint, and, the venue of the cause having been changed to the court below, were there tried by a jury, and a verdict was returned for the appellee, assessing her damages in the sum of $ 400. Over appellant's motion for a new trial, the court rendered judgment against him on the verdict, in appellee's favor, for the damages assessed and costs.

In this court, the first ruling below complained of as erroneous, by appellant's counsel in argument, is the overruling of appellant's motion for leave to open and close the trial of the cause to the jury. On this point, the rule of practice under section 536, R. S. 1881, of our civil code, is, that the party having the burden of the issue, on the trial, shall have the opening and closing of the case to the jury. Kinney v. Dodge, 101 Ind. 573. In the first and fourth paragraphs of her complaint, the appellee alleged that the appellant had "falsely, maliciously and slanderously" spoken to certain named persons, of and concerning appellee, certain "false, malicious and slanderous words," setting them out, imputing to her a want of virtue and chastity. To these paragraphs the appellant answered in a single paragraph, covering six pages of closely-written legal-cap paper, which it is difficult to characterize. It was prepared, apparently, for the purpose of enabling the appellant to obtain the opening and closing of the case to the jury; but it failed, and properly so, we think, to enable him to accomplish such purpose. After admitting that he had spoken substantially the same words, stated in the complaint, setting them out and giving at great length his version of the circumstances under which the words were spoken, his answer proceeds as follows: "The defendant avers that all statements made by him, alleged in the complaint of the plaintiff, were of and concerning such plaintiff, but without malice."

It will be readily seen that this answer does not confess and avoid the cause of action stated in appellee's complaint. On the contrary, it affirms facts which are utterly inconsistent with the truth of facts entering into and constituting a material element in appellee's cause of action. Such an answer is what is generally called an argumentative denial pro tanto of the complaint, and the burden of the issue formed by such denial is of course on the plaintiff and gives her the right to open and close. Rothrock v. Perkinson, 61 Ind. 39; Kinney v. Dodge, supra. There was no error, therefore, in the court's refusal to allow appellant to open and close the case to the jury.

Appellant's counsel next insist, that the trial court erred in permitting the jury to take with them, in their retirement to consider of their verdict, the pleadings in the cause. There was no error in this action of the...