Stahl v. Kincade
| Decision Date | 23 September 1963 |
| Docket Number | No. 19647,No. 2,19647,2 |
| Citation | 192 N.E.2d 493,135 Ind.App. 699 |
| Parties | Charlotte STAHL, Appellant, 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 |
| Court | Indiana Appellate Court |
Wiley E. Hosier, Terre Haute, for appellant.
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.
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 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 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 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 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 besmirch and injure the plaintiff in her good name, reputation and credit, and to bring her in public scandal, infamy and disgrace and low repute, infamy and disgrace with and among her good neighbors and other good and worthy citizens, and to cause it to be suspected and believed by these neighbors and citizens that the plaintiff had been and was guilty of the offenses * * * set forth in (the) counterclaim' did not file the same in due course of law and that it was not pertinent, relevant or germane to the issues in the injunction suit; that after the counterclaim was stricken from the record the defendants to further malign, blaspheme and maliciously attack and deprive plaintiff of her good name and character, filed the second purported counterclaim which was entirely foreign and irrelevant to the issues involved, alleging maliciously and falsely that plaintiff was openly and notoriously guilty of adultery; that the besmirching and blasphemous charge was made for the sole purpose of injuring and damaging plaintiff's character and reputation among her neighbors and friends and other citizens; that her character was besmirched and her health impaired; that the second purported counterclaim was not filed in due course of law as it was neither pertinent nor relevant to the issues involved. It is further alleged that all charges made in the purported counterclaim were wholly false and designed to besmirch and ruin plaintiff's character and good name; that the charges were framed and conspired in malice; that the repetition of the charge of open and notorious adultery in the verified purported counterclaim was knowingly, wantonly and falsely made in malice. A judgment for damages was prayed for.
The demurrers in the present action were based upon want of facts, and were accompanied by memoranda.
Appellant devotes a portion of her argument to the alleged insufficiency of the memoranda. However, inasmuch as the demurrers were sustained, the ruling of the trial court will be affirmed if the ruling was right on the merits, regardless of whether or not the memoranda contained appropriate specifications. Bruns v. Cope (1914), 182 Ind. 289, 296, 105 N.E. 471; Millspaugh, Admr. v. Northern Ind. Pub. S. Co. (1938), 104 Ind.App. 540, 546, 12 N.E.2d 396; Burns v. Mills, Receiver (1925), 82 Ind.App. 621, 147 N.E. 300; Washington Hotel Realty Company v. Bedford Stone, etc., Co. (1924), 195 Ind. 128, 136, 143 N.E. 156; State, ex rel. v. Sizelove (1925), 83 Ind.App. 48, 50, 137 N.E. 616.
For the purpose of determining whether the trial court committed error in sustaining the demurrers, we must accept all facts well pleaded as being true. Pier v. Schultz (1962), Ind., 182 N.E.2d 255, 257, as well as all reasonable inferences from the facts alleged. See also 23 I.L.E., Pleading, § 108, p. 351, with cases cited.
The principal argument by the parties in this case concerns whether or not the matters set forth in the purported counterclaims were privileged.
As this court said in Cadle v. McIntosh (1912), 51 Ind.App. 365, 370, ...
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