Bain v. Myrick , 88 Ind. 137 ( 1882 )

Howk, J.

— The only question for decision in this case is the sufficiency of the appellee’s ccrmplaint, after verdict, to constitute a cause of action. The suit was commenced in the Morgan Circuit Court, but before any other proceedings were had therein, upon the appellee’s motion, the venue of the cause was changed to the court below.

In his complaint the appellee alleged, in substance, that before the appellant committed the wrongs and injuries hereinafter stated, the appellee was reputed and known among his neighbors as an honest man, and had never been suspected of the crime of larceny or other crime; that the appellant, well knowing the premises, but intending to injure appellee and cause it to be believed by his neighbors and the public that appellee had been guilty of larceny, and thereby bring, him into disrepute and shame, and injure and ruin him, falsely and maliciously printed, published and caused to be read by two-thousand persons and citizens of Morgan county, of and concerning the appellee and the larceny aforesaid, in a certain' newspaper by the appellant edited, printed, published and generally circulated throughout Morgan county, known as and called the “Martinsville Republican,” on the 17th day of March, 1881, at the county of Morgan, of which county ap~ pellee then and since was a citizen, the following false and malicious libel, to wit: “A man named Myrick ” (plaintiff meaning) “and a man named McCollum” (Samuel McCollum meaning), “ both living near Hall, this county, used to be in partnership in the stock business. A few months since they ■dissolved the partnership and divided the stock, Myrick ” (plaintiff meaning) “ taking his part to the city and selling it. Not content with this he ” (plaintiff meaning) “ seems to have ■coveted his late partner’s cattle. Early this week he” (plaintiff meaning) “ started between two days for the city with McCollum’s ” (Samuel McCollum meaning) “ cattle. ^ Soon an officer was put on the trail; said trail grew exceedingly hot along here, and the cattle and Myrick ” (plaintiff meaning) “ were all overtaken and captured near Riley McCrary’s. Such is the unadorned tale as it reached our reporter’s ears.” Wherefore appellee said that he had sustained damages in the .sum of $3,000, for which he demanded judgment.

There was no demurrer to this complaint; but after trial ■and verdict against the appellant, his motion in arrest of judgment was overruled by the court. He has assigned as errors the overruling of his motion in arrest and the alleged insufffcieney of the complaint.

It is earnestly insisted by the appellant’s counsel that the complaint is bad, even after verdict, because the alleged libellous publication set out therein did not charge the appellee with the crime of larceny, and because the innuendoes therein could not and did not aver any fact or change the natural meaning of the language used. If this had been an action •of slander for words spoken, the objections to the complaint might, perhaps, have been well taken, and the authorities cited by counsel in support of the objections would, perhaps, have been in point. But it is well settled that it is not necessary ■that a crime should be charged, in the language of the statute, in a written or printed publication, in order to constitute such publication a libel. Any such publication as holds a person up to scorn or ridicule, or to a stronger feeling of contempt or execration, or impairs Ms enjoyment of general society, or imputes or implies Ms commission of a crime not directly ■charged, is a libellous publication. Where the published •charge is libellous without an innuendo, if the complaint contain an unnecessary innuendo it will be regarded as surplus-age, and -will not vitiate a complaint otherwise good. It seems to us that the publication set out in appellee’s complaint, in the case at bar, is clearly a libel.within the meaning of the law; and the colloquium and innuendoes were amply sufficient to show the application of the libellous matter to the .appellee. Gabe v. McGinnis, 68 Ind. 538, and authorities cited.

We are of opinion that appellee’s complaint would have been good, upon a demurrer thereto for the want of sufficient facts, and that, as the question is presented here, it stated facts .sufficient, beyond any room for doubt, to constitute a cause of action.

The judgment is affirmed, with costs and ten per centum •damages.