Wintrode v. Renbarger

• Decision Date: 24 May 1898
• Docket Number: 18,296
• Parties: Wintrode v. Renbarger
• Court: Indiana Supreme Court

50 N.E. 570

150 Ind. 556

Wintrode v. Renbarger

No. 18,296

Supreme Court of Indiana

May 24, 1898

From the Huntington Circuit Court.

Reversed.

J. B Kenner and U. S. Lesh, for appellant.

O. W Whitelock and S. E. Cook, for appellee.

OPINION

Hackney, C. J.

Suit by appellant for slander. Trial and judgment for appellee. First and third assignments are that the trial court erred in overruling demurrers, respectively, to the second paragraph of answer to the first paragraph of complaint, and the second paragraph of answer to the second paragraph of complaint. The record fails to disclose the filing of demurrer to or any ruling upon the second answer to the first paragraph of complaint, and, therefore, presents no basis for the first assignment of error.

The second paragraph of complaint went out of the record upon demurrer, as did any answers thereto, and the record discloses the filing, on three occasions, of an amended second paragraph of complaint. The third assignment does not question a ruling upon demurrer to the second answer to the amended second paragraph of complaint, and, therefore, presents no question for review. The only demurrer in the record to which the assignment could possibly apply was for the reason that facts were not stated "sufficient to constitute a good answer to the complaint of the plaintiff."

On the authority of Young v. Warder, 94 Ind. 357, this form of demurrer would not question the sufficiency of the answer as stating a cause of defense.

Several questions arising upon the motion for a new trial are best considered by reference to the pleadings. The appellant was sheriff, and had the custody of the county jail and of the prisoners confined therein, and the first paragraph of the complaint charged the appellee with speaking the defamatory words, concerning the appellant, "You are starving men to death in jail," and, by innuendo, it was alleged that appellee meant to charge appellant with a felony in attempting to murder prisoners by starvation.

The amended second paragraph of complaint charged the appellee with speaking, in one specification, the same words alleged in the first paragraph, as a neglect of official duty, and in another specification, the additional words: "Yes, you are keeping the jail a d--d sight worse than Libby Prison," with the following innuendo: "meaning and intending to charge that the plaintiff, as keeper of the county jail, was torturing and starving and maltreating the prisoners under his charge, and violating his official duties to provide for them food, as the law requires him to do; and he further avers that the false and defamatory phrase referring to Libby Prison, was meant the prison that was known during the war of the rebellion as Libby Prison, and which was reputed to be, as a historical fact, and understood by the people generally that such prison was being so conducted during the years of the war that prisoners of war imprisoned there were not fed sufficient food, and...