Porter v. Choen

Howk, J. In this action, the appellee, as plaintiff, sued the appellant, as defendant, in the court below. In his complaint, the appellee alleged, in substance, that he was then, and for twenty years past had been, a •citizen of Clinton township, Cass county, Indiana, and neither a thief nor perjurer; that, on the — day of July, 1874, at said county and State, in the presence of divers good citizens of said county and State, the appellant uttered the following false and slanderous words, of and ■concerning the appellee and his character for honesty and truth, to wit: “ Old Charlie Choen is a G — d d — d old cattle thief and hog thief, and I can prove it by all his neighbors; I have been keeping him in hog meat for twenty years. He (the appellee meaning) has always kept a set of G — d d — d thieves and liars about him to steal for him and swear for him (meaning thereby that the appellee was a thief, and consorted with perjurers and thieves). They will swear a man to h — 11 (meaning the appellee was a perjurer and a suborner of perjury). The whole G — d d — d Choen gang are thieves ’’(meaning thereby that the appellee and his family and associates were thieves). All of which charges were false and slanderous; whereby the appellee’s character was brought into great and manifest and public scandal and disgrace, and he was — 340 — damaged in the sum of five thousand dollars. Wherefore, etc. To this complaint the appellant demurred, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the-court below, and to this decision the appellant excepted. And the appellant moved the court below in writing to' strike out certain parts of the complaint, which motion was also overruled, and to this decision the appellant excepted. The appellant then answered in four paragraphs, in substance, as follows: 1. A general denial. 2. The appellant admitted the speaking of the words charged in the complaint; but, as to the words which charged the appellee with being a cattle thief and hog thief, that they were true; that, on the 1st day of June, 1874, at said county and State, the appellee did then and there feloniously steal, take, drive and carry away one-hog, the personal property of one William R. Portel’, of the value of ten dollars; and so the appellant charged,, said words were true, and, therefore, the appellant ought not to recover. 3. The appellant admitted the speaking of the words, charged in the complaint; but, by way of mitigation of the damages sustained by the appellee, he, the appellant, said,, that, on the 7th day of June, 1874, at said county and State, the appellant’s minor son, William R. Porter, then living in appellant’s family, was the owner of one hog, of the value of ten dollars; that said hog had been missing from appellant’s farm, where the same had been, and said William R. Porter went to the appellee’s farm to search for the same, and then and there found said hog on appellee’s farm, and in his possession, concealed in an obscure place and in a tight pen, where no person could find it without much difficulty; that said William R. Porter turned said hog but of said pen, and it came home — 341 — "to appellant’s farm; that on said day, which was some dive weeks after said hog was found, one John Choen, the appellee’s son and then a member of appellee’s family, instituted a suit to replevy said hog, and sent a constable with a writ of replevin to replevy said hog; that said •constable came to the appellant, where he was at work in the harvest-field, and brought with him the appellee, said John Choen, some six or seven other men, also members ■of appellee’s family, and two dogs, for the pui’pose of executing said writ; that the appellant, seeing and knowing all this, and believing the said hog belonged to his son, and not to the said John Choen, became and was greatly enraged at the appellee, and then and there, in the heat of passion and anger, uttered and spoke said words, .and not otherwise. "Wherefore the .appellant said, that the said circumstances, under which the said words were •spoken, should be taken in mitigation of damages. And, 4. The appellant admitted, that he spoke the words mentioned in the complaint, but said that they were not ;spoken within two years before the commencement of this suit. The appellee replied, by a general denial, to each of the second, third and fourth paragraphs of the appellant’s .answer. The issues joined were tried by a jury in the court "below, and a verdict was returned for the appellee, assessing his damages in the sum of five hundred and twenty-five dollars. And the appellant’s motion for a ne-it trial having been overruled, and his exception saved to such decision, judgment was rendered by the court below on the verdict. In this court, the appellant has assigned, as errors, the following decisions of the court below: 1st. In overruling his demurrer to appellee’s complaint; 2d. In overruling his motion to strike out parts of said «complaint; and, 3d. In overruling his motion for a new trial. — 342 — The first of these alleged errors appellant’s attorney has not even alluded to in his argument of this cause, in this court. Therefore, we regard this first error as waived. Breckenridge v. McAfee, 54 Ind. 141, and Graeter v. Williams, 55 Ind. 461. The second error assigned by the appellant calls in question the decision of the court below, in overruling his motion to strike out parts of appellee’s complaint. Ordinarily, the overruling of a motion to strike out part of a pleading, even though erroneous, is not an available error in this court, to procure the reversal of the judgment of the court below, and for this reason, that, if the', ruling is erroneous, the part of the pleading to which the motion is addressed will be regarded in this court as. mere surplusage, and therefore harmless. House v. McKinney, 54 Ind. 240, and Moore v. The State, ex rel., etc., 55 Ind. 360. In this case, the appellant’s motion was to strike out a part of the alleged slanderous words, upon the ground that the words designated were not actionable, but were mere surplusage. As precisely the same questions are presented by the appellant’s exceptions to the instructions of the court below to the jury trying the cause, we will con-„ sider those questions when they arise, under the third and last alleged error. This error, is the decision of the court below in overruling the appellant’s motion for a new trial. Many causes for such new trial were assigned by the appellant, in his motion therefor, consisting chiefly of alleged errors of law occurring at the trial and excepted to. "We think it unnecessary, and that it would be unprofitable for us, to set out or comment upon all of these errors of law, in this opinion. The view which we shall take of this case will reverse the judgment of the court below, and perhaps lead to a new trial of this cause; but it is not very probable, — 343 — in our opinion, that the same questions will arise in the same form on such new trial, and, therefore, we need not now consider them. The appellant has complained in this court of the instructions of the court helow to the jury, in relation to the alleged slanderous words set out in the complaint. On this subject the court instructed the jury as follows : “ Some of the words charged are actionable, and others are not. The words, 4 Old Charley Choen is a G — d d-d cattle thief and hog thief, and I can prove it by-all of his neighbors,’ are actionable words. 44 The words,4 He has always kept a set of G — d d-d thieves and liars about him to steal for him and swear for him,’ are actionable words, so far as they charge him with keeping thieves about him to steal for him, and not actionable so far as they charge him with keeping liars about him to swear for him. 44 The words, 4 The whole G — dd-d Choen gang are thieves,’ are also actionable words. 44 The following words, alleged in the complaint to have been spoken, by the defendant, of the plaintiff, are not actionable: 41 have been keeping him in hog meat for twenty years.’ 4 They will swear a man to hell.’ ” These instructions to the jury give a very fair construction of the alleged slanderous words charged in the complaint; and certainly it seems to us, that the appellant has no just cause to complain of any of said instructions. The words, of which the jury were told that they were not actionable, could not injure the appellant; and therefore we think that the refusal of the court helow to strike out those words might well he termed a harmless error. The seventh cause for a new trial assigned by the appellant, in his motion therefor, was as follows: 44 7. The plaintiff and his counsel were guilty of misconduct and irregularity, by which the defendant was prevented from having a fair trial, during the trial of said cause, in this, to wit: During the argument of this cause, — 344 — the plaintiffs counsel, in the presence of the jury, turned to the court and read from ‘Davis’ New Indiana Digest,’ 2d volume, page 922, section 206, as follows: ‘ A new trial will not be granted in a case on the ground of excessive damages, unless the damages are so outrageous as to induce the belief that the jury acted from prejudice, partiality, or corruption. Alexander v. Thomas, 25 Ind. 268.’ And then and there stated to the court, that the amount of damages recovered in said cause was $1,100; and, at the same time and place, in the presence and hearing of the jury, also read from the same hook, on the same page, section 209, as follows: ‘ Cases in which the Supreme Court refused to set aside the verdict on the ground of excessive damages: Clarkson v. McCarty, 5 Blackf. 574, case of libel, $1,400; Sanders v. Johnson, 6 Blackf. 50, case of slander, charging perjury, $2,736; McIntire v. Young, 6 Blackf. 496, case of slander, charging want of chastity, $1,000; Iseley v. Lovejoy, 8 Blackf. 462, charge, larceny, $657; Teagle v. Deboy, 8 Blackf. 134, charge, larceny, $500; ’ • * * * to the reading of which the defendant objected at the time, but the court overruled the objection, to which the defendant at the time excepted.” It appears by a bill of exceptions, which is properly in the record, that, during the argument of the cause before the jury by the appellee’s counsel, the authorities and quotations recited in said seventh cause for a new trial were “read to the court, in the hearing of the jury; to the reading of which the defendant at the time objected, because there was no question before the court, and because no question arose under the issues in the cause, on which said law, as set forth in said book, could throw any light; but the court overruled the defendant’s objections, and allowed the same to be read to the court,” to which ruling of the court the defendant, at the time, excepted. — 345 — The first two statutory causes for a new trial, as set forth in section 352 of the practice act, are as follows: “ First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial. “ Second. Misconduct of the jury or prevailing party.” 2 R. S. 1876, pp. 179 and 180. "We 'have no brief of this cause from the appellee, in this court, and we confess that we are unable to conjecture any legal grounds upon which the action of the appellee, and the ruling of the court below thereon, complained of by the appellant in his seventh cause for a new trial, can possibly be defended. From our standpoint, tho action of the appellee and the ruling of the court thereon were both erroneous, and are alike indefensible. Of course the appellee could not have proved as facts, upon the trial, the amounts of damages which had been assessed by other juries in other suits for slander; nor could he have proved, that, in those other suits, where heavy damages had been assessed, the Supreme Court of the State had refused to set aside the verdicts on the ground of excessive damages. Therefore, for the purpose, apparently, of getting these matters, these heavy damages in other verdicts, with the seeming approval of the amounts thereof by the highest court of the State, before the jury trying this cause, the appellee read, and, over the appellant’s objections, the court below sanctioned the reading of, the authorities and quotations before set out, in the presence and hearing of the jury. Comment on these proceedings of the appellee, it seems to us, is wholly unnecessary. It is clear that there was, in this case, such an irregularity, if nothing more, in the proceedings of the prevailing party, as manifestly prevented the appellant from having a fair trial. For the reasons given, the court below erred, in our — 346 — opinion, in overruling the appellant’s motion for a new trial of this cause. The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the appellant’s motion for a new trial.