Stahl v. Kincade, No. 19647
| Docket Nº | No. 19647 |
| Citation | 192 N.E.2d 493, 135 Ind.App. 699 |
| Case Date | September 23, 1963 |
| Court | Court of Appeals of Indiana |
Page 493
v.
Leonard P. KINCADE, Ralph Berry and C. William Allen, doing
business under the firm name of Berry, Kincade and Allen, as
individuals and as partners, and Paul L. Petty and Mary
Petty, clients of the law firm of Berry, Kincade and Allen, Appellees.
Rehearing Denied Nov. 7, 1963.
[135 Ind.App. 700] Wiley E. Hosier, Terre Haute, for appellant.
Page 494
Berry, Kincade & Allen, Terre Haute, Ernest J. Zwerner, Thomas H. Hicks, Verl G. Miller, Hansford C. Mann, Jordan D. Lewis, Jerdie D. Lewis, Robert H. Duffy, Terre Haute, James V. Donadio, Indianapolis, Luther G. Johnson, Earl M. Mann, David E. Rosenfeld, Robert G. Wolfe, Jack H. Mankin, Terre Haute, Clelland Hanner, Rockville, of counsel, for appellees.
PFAFF, Judge.
This appeal is from a judgment entered in an action for libel brought by appellant when appellant refused to plead over following the sustaining of demurrers[135 Ind.App. 701] to her amended complaint. The alleged libelous language complained of was set forth in what are denominated as counter-claims in a former action between appellant, as plaintiff, and the appellees, Paul L. Petty and Mary Petty, as defendants, in which action the other three appellees were attorneys for defendants.
Appellees contend that the alleged libelous matter was an absolutely privileged communication because it was set forth and published in a judicial proceeding.
It is alleged in the amended complaint in the present action that appellant, as plaintiff, filed an action against the appellees, Paul L. Petty and Mary Petty, as defendants, seeking an injunction. The complaint in the injunction action alleged that the defendants owned property which adjoined plaintiff's property at the rear thereof and that they erected a basketball court thereon; that the properties were in a residential section of the city of Terre Haute, Indiana, where private homes exclusively prevail; that the use of the basketball court was an abuse of the residential private property rights of plaintiff; that the defendants' back yard was converted from a private and residential use to a public use; that defendants encouraged the use of their back yard as a public basketball playground, which was unsupervised, unfenced and unguarded. Further allegations were made as to the noise, annoyance and disturbance as constituting a nuisance and as to trespasses by the players upon plaintiff's property, and the use of vulgar and profane language. The prayer was for an injunction enjoining the defendants from permitting their residential property from being used as a public playground, and from permitting the basketball players to trespass upon plaintiff's property.
In the injunction action defendants, Paul L. Petty and Mary Petty, filed an unverified pleading denominated[135 Ind.App. 702] a counterclaim, which alleged that plaintiff was at the time of filing her complaint, and for a long time prior thereto, living in open and notorious adultery with a married man who was a member of the police department of the city of Terre Haute; that her conduct with said man was indecent, scandalous and repugnant to the sense of morals of the neighborhood, and particularly repugnant, indecent and offensive to the defendants; that plaintiff's conduct shocks the sensibility of the defendants and tends to disgrace the statute of the law in the eyes of the children of the neighborhood and creates disrespect in general for officers of the law and the uniform worn; that plaintiff's overt and notorious conduct constitutes a private and public nuisance and depreciates the value of property in the neighborhood. The court was asked to enjoin plaintiff from further adulterous entertainment of said married man.
On plaintiff's motion the counterclaim was stricken from the record. Thereupon defendants filed another purported counterclaim, verified by counsel, containing the allegations of the first and further alleging that defendants erected the basketball court and encouraged its use by the youth of the neighborhood in order to distract their attention from plaintiff's activities and to prevent further depreciation of the morality of said children by their watching
Page 495
and speculating about the plaintiff's immoral and indecent activities; that but for plaintiff's immoral activities there would be no need for defendants using their property to preserve the morality of the children and youth of the neighborhood. The prayer of this pleading was the same as that of the first purported counterclaim. This pleading was also stricken. After trial, a judgment was rendered enjoining[135 Ind.App. 703] defendants from trespassing upon plaintiff's property.The amended complaint in the present action, to which demurrers were sustained, alleges the filing by appellant of her amended complaint in the injunction action, and sets forth the complaint in full, as well as the two purported counterclaims. It is alleged that the appellee lawyers, with the consent and approval of the Pettys 'contriving and wantonly and maliciously intending to...
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Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
...would improperly eliminate the privilege in a vast number of cases. The parties differ as to the effect of the case of Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493 (1963). That case established the principal in Indiana for the first time that in order for the “absolute privilege” to a......
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Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., No. 2-581A150
...of judicial proceedings, with the qualification that the statements must be pertinent and relevant to the case. Stahl v. Kincade (1963) 135 Ind.App. 699, 192 N.E.2d 493. See also 50 Am.Jur.2d Libel & Slander Sec. 231 (1970); Restatement (Second) of Torts Secs. 586, 587 (1977). The reason un......
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Medical Informatics Engineering v. Orthopaedics Ne., No. 1:06-CV-173.
...rule."); Chrysler Motors Corp. v. Graham, 631 N.E.2d 7, 9-10 (Ind.Ct.App.1994); Briggs, 452 N.E.2d at 997 (citing Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493, 497 (1963)) ("The question of relevancy or pertinency is a question of law.... The courts favor a liberal rule[.]") (internal......
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Sullivan v. Malta Park, Nos. 2014–CA–0823
...not satisfied and that the qualified privilege thus does not apply.Our finding is bolstered by the holding in Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493 (1963). In Stahl, the underlying suit was a property dispute—a nuisance and trespass suit seeking to enjoin the defendant from mai......
-
Estate of Mayer v. Lax, Inc., No. 37A03–1207–PL–323.
...would improperly eliminate the privilege in a vast number of cases. The parties differ as to the effect of the case of Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493 (1963). That case established the principal in Indiana for the first time that in order for the “absolute privilege” to a......
-
Briggs v. Clinton County Bank & Trust Co. of Frankfort, Ind., No. 2-581A150
...of judicial proceedings, with the qualification that the statements must be pertinent and relevant to the case. Stahl v. Kincade (1963) 135 Ind.App. 699, 192 N.E.2d 493. See also 50 Am.Jur.2d Libel & Slander Sec. 231 (1970); Restatement (Second) of Torts Secs. 586, 587 (1977). The reason un......
-
Medical Informatics Engineering v. Orthopaedics Ne., No. 1:06-CV-173.
...rule."); Chrysler Motors Corp. v. Graham, 631 N.E.2d 7, 9-10 (Ind.Ct.App.1994); Briggs, 452 N.E.2d at 997 (citing Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493, 497 (1963)) ("The question of relevancy or pertinency is a question of law.... The courts favor a liberal rule[.]") (internal......
-
Sullivan v. Malta Park, Nos. 2014–CA–0823
...not satisfied and that the qualified privilege thus does not apply.Our finding is bolstered by the holding in Stahl v. Kincade, 135 Ind.App. 699, 192 N.E.2d 493 (1963). In Stahl, the underlying suit was a property dispute—a nuisance and trespass suit seeking to enjoin the defendant from mai......