Norton v. Cooley

257 N.E.2d 323, 146 Ind. App. 514, 1970 Ind. App. LEXIS 460
CourtIndiana Court of Appeals
DecidedApril 15, 1970
Docket569A80
StatusPublished
Cited by4 cases

This text of 257 N.E.2d 323 (Norton v. Cooley) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norton v. Cooley, 257 N.E.2d 323, 146 Ind. App. 514, 1970 Ind. App. LEXIS 460 (Ind. Ct. App. 1970).

Opinions

Hoffman, P.J.

Defendants-appellants appeal from a judgment for libel rendered against them by the trial court, without the intervention of a jury.

The facts most favorable to appellee are as follows:

In May, 1963, appellee purchased from The Jay C. Store in Columbus, Indiana, supplies for the garag-e and service station and a small restaurant which he owned and operated. Appellee generally paid for such supplies in cash, but on this one occasion he endorsed over to appellant-Store a personal check to appellee in the amount of $50. Appellee had received the check from one William Seitz in payment of rent.

In due course, the store presented the check for payment at the Nashville State Bank and it was returned unpaid by reason of insufficient funds in the account of-Mr. Seitz.

Shortly thereafter, appellee heard rumors that The Jay C. Store would no longer accept his checks, and accordingly he “went in to see why.” In June of 1963 appellee talked with appellant-Jack Norton, manager of the store. After some discussion, appellee agreed to pay the amount due himself if Mr. Seitz did not cover it within two weeks.

During early October, 1963, appellee attempted to purchase a drum of oil from a service station operated by one Marshall Palmer. He offered a check in payment and Mr. Palmer refused to accept the check. Upon direct examination this witness testified that, “He [appellee] wanted to make me out a check for $20.40 for a' barrel of oil and I told him I couldn’t take it because I had seen his name on the list at the Jay C. Store.”

Appellee went immediately to appellant-Store. There he discovered cardboard signs attached to the customer’s checkout side of each of the three cash registers which read as follows.:

[516]*516“Our cashiers have been instructed not to accept checks on the following....”

Appellee’s name appeared among those posted on the sign. The signs were clearly visible to customers of the store using the check-out lines. The words were printed in one-inch high letters and were easily readable. At that time appellee again spoke with Mr. Norton and, in fact, paid for the check written by Mr. Seitz. Mr. Norton then took a pencil and drew lines through appellee’s name on each of the signs.

A number of persons testified at the trial that they had seen the signs and assumed that appellee had written a bad check.

Appellee filed his complaint alleging that he had been libeled by defendants-appellants. Appellants separately demurred alleging that the words were not libelous per se and, therefore, that plaintiff would have to allege inducement and colloquium. The demurrers were overruled.

Trial was to the court, without the intervention of a jury.

On the 27th day of November, 1968, the court entered finding in favor of appellee on his complaint and awarded him damages in the sum of $1,500.

Appellants assign as error 1) the overruling of their motion for a new trial, and 2) the overruling of their demurrers.

The motion for a new trial contains seven specifications of errors:

1. That the court erred in overruling appellants’ demurrers;

2 and 3. That the decision of the trial court is not sustained by sufficient evidence and is contrary to law;

4. That the court erred in permitting hearsay evidence to be admitted into the record over an objection of appellants j1

[517]*5175. The court erred in overruling defendants-appellants’ motion for finding in their favor at the close of plaintiff-appellee’s evidence; and

6. and 7. That the damages assessed are excessive and the court erred in the assessment of the amount of recovery in that it was too large.

Appellants have not discussed the alleged error raised in Specification 5 in the argument section of their brief as required by Rule 2-17 (h), Rules of the Supreme Court of Indiana, and such error is, therefore, waived.

We shall consider the specifications of error which are discussed in appellants’ brief.

The main thrust of appellants’ argument is directed to the. complaint and the allegations contained therein.

Appellants correctly argue that where the alleged defamatory words are not actionable per se, then the complaint must contain allegations of inducement, colloquium and innuendo. Hamilton v. Lowery (1903), 33 Ind. App. 184, 71 N. E. 54; Kelly v. State (1900), 24 Ind. App. 639, 57 N. E. 257. See also: 18 I.L.E., Libel and Slander, § 82, p. 487.

This argument raises our first question — were the words libelous per se?

In Gibson v. Kincaid, et al., 140 Ind. App. 186, 196, 221 N. E. 2d 834, 840 (1967), (Transfer denied), in a concurring opinion by Judge Faulconer, an extensive and exhaustive review was made of the law of defamation with particular reference to applicable Indiana cases. While conceding that there is no specific case holding on the point here in issue, [518]*518Judge Faulconer stated that, “Indiana applies the distinction between words defamatory per se or per quod to the tort of defamation.” (Pages 205-206 of 140 Ind. App., page 845 of 221 N. E. 2d.) Further, at page 201 of 140 Ind. App., page 843 of 221 N. E. 2d, he stated that:

“It is generally agreed that words are actionable without allegation and proof of special damage when:
“(1) Words, whether they be in the form of libel or slander, which are defamatory per se or per quod, which (a) impute to another the commission of an indictable offense punishable by imprisonment; (b) impute to another a loathsome disease; (c) tend to injure another in his office, profession, trade; business or calling*; or (d) impute unchastity to a woman.
“(2) Words in the form of libel which, on their face, without resort to extrinsic facts or circumstances, that is to say, ‘per se’ tend to degrade another person, impeach his honesty, integrity, or reputation, or bring him into contempt, hatred, ridicule, or causes him to be shunned or avoided.”

If the words complained of fall into the first category above, then plaintiff-appellee must aver such extrinsic facts as are necessary to establish the libel.

“These averments must be distinctly stated in the inducement, applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendoes.” (Emphasis supplied.) Works v. Stevens, 76 Ind. 181, 184 (1881).

The words here complained of are not libelous per se; they are libelous per quod. We have reviewed the complaint and it makes the proper averments, inducements, colloquium and innuendo. There was no error in the ruling on the demurrers.

Further, our review of the evidence most favorable to the appellee establishes that there was sufficient evidence to support the allegations of the complaint and to establish the libel. A number of witnesses testified that after reading the signs in The Jay C. Store, they held the belief that appellee had “passed a bad check.”

[519]

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271 N.E.2d 140 (Indiana Court of Appeals, 1971)
Norton v. Cooley
257 N.E.2d 323 (Indiana Court of Appeals, 1970)

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257 N.E.2d 323, 146 Ind. App. 514, 1970 Ind. App. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-cooley-indctapp-1970.