Huddleson v. Swope , 71 Ind. 430 ( 1880 )

Niblack, C. J.

This was an action by Eliza E. Swope and her husband, William PI. Swope, against Martha Huddleson and her husband, Isaac Huddleson, for alleged slanderous words spoken by the said Martha concerning the said Eliza.

The complaint was in two paragraphs.

The defendants demurred to the first paragraph and, severally, to the several sets of words contained in the second paragraph. The demurrer was sustained to the first paragraph, hut overruled as to all the sets of words in the second paragraph. Verdict for the plaintiffs. Motion for a new trial overruled, and judgment on the verdict.

The second paragraph averred, that on or about the 20th day of June, 1876, the said Martha Huddleson did falsely, wickedly and maliciously speak and publish of and concerning the said Eliza E. Swope, to and in the presence of divers persons, the following scandalous and defamatory words, that is to say:

“ I (said defendant Martha Huddleson meaning) know that Charley Hood (meaning one Charles Hood, who then and there resided in the town of Dublin,Wayne county, Indiana,) is keeping her (meaning plaintiff Eliza E. Swope), and that I know there were criminal acts between them (meaning the said Charles Hood and the plaintiff' Eliza E. Swope), and that Will Swope (meaning the plaintiff William H. Swope) was knowing to it.”

Also these words :

“ I (meaning the said Martha Huddleson) not only believe it, hut I know they are criminally guilty (meaning and referring to the plaintiff’ Eliza E. Swope and the said Charles Hood). I know, and God in Heaven knows, that it is so.”

Also these words:

“I (meaning the said defendant Martha Huddleson) don’t believe any thing about it; I (meaning the said defendant) know there is criminal intercourse between them (meaning and referring to said plaintiff Eliza E. Swope and the said Charles Hood).

Also these words:

“ He ( meaning and referring .to one Charles Hood) keeps running there (meaning the house where plaintiff then resided, in Dublin, Wayne County, Indiana,) all the time, and he (meaning said Charles Hood) don’t go there for any good. He (meaning said Hood) is keeping her (meaning said Eliza E. Swope), and Will. Swope (meaning the plaintiff William II. Swope) knows it.”

And the said 'second paragraph further averred that the said Martha, by the use of said words and by each set thereof, intended to charge that the said Eliza had been guilty of the crime of adultery with the said Charles Hood.

It is insisted that none' of the sets of words above set forth were actionable per se, and that there was no proper and precedent averment of extrinsic facts, which made them actionable; that, therefore, the demurrer ought to have been sustained to each and all the said several sets of wor’ds.

The inducement and colloquium in a complaint for slander usually precede the statement of the words alleged to have been spoken, hut it is not material that they7 should do so.' It is sufficient if they be inserted in any portion of the proper paragraph. Townshend on Slander & Libel, 557, see. 311.

The words demurred to as above were clearly not actionable per se, but we think the concluding averments of the paragraph of the complaint, which contained them, substantially supplied a more formal inducement and colloquium, and thereby rendered all of those sets of words sufficient upon demurrer.

The court, at the proper time, gave,. amongst many others, the following instruction to the jury:

“ If you believe from the evidence, that Martha Huddleson spoke, at any time within two years of filing the complaint, any of the sets of words stated in the complaint, and spoke them of Eliza E. Swope, or spoke enough of any one of the sets to import that she was guilty of having committed adultery with Charles Hood, you should find for the plaintiffs, unless the defendants have proved, by a fair preponderance of the evidence, that, before such speaking, said Eliza E. Swope had committed adultery with said Charles Hood.”

We construe this instruction as intended to mean, and as in effect saying to the jury, that all of the sets of words complained of imported a charge of adultery against Mrs. Swope, and were consequently actionable per se, if shown to have been spoken concerning her.

As thus construed, and we are unable to give it any other construction, the instruction can not be sustained. None of the words or sets of words in question, of themselves, imported a charge of adultery, or of any other distinct crime, and it was not enough to prove the mere speaking of some or all of those words, in reference to Mrs. Swope.

It was necessary, also, to show that the words were spoken of and concerning her character for chastity, and in the sense charged in the complaint. Emmerson v. Marvel, 55 Ind. 265 ; Schurick v. Kollman, 50 Ind. 336; Ward v. Colyhan, 30 Ind. 395.

Other questions have been discussed by counsel, but, as the judgment must in any event be reversed, we need not now consider them.

The judgment is reversed, with costs, and the cause is remanded for a new trial.