This case is here on transfer from the Appellate Court under the Acts of 1901, ch. 247, § 15, p. 565, being Burns' Ind. Stat. Anno. § 4-209 (1946 Repl.), because three judges of the Appellate Court are of the opinion that the judgment in the court below should be affirmed and three judges are of the opinion that the judgment below should be reversed. Two of the judges of the Appellate Court did not participate in the consideration of this case.
As stated by the appellee in his brief, this action is a suit for "conspiracy to defame." The appellee sued the Indianapolis Horse Patrol, Inc., a corporation and joined as parties-defendant
The appellee's amended complaint is 12 pages in length and contains 35 rhetorical paragraphs. For our purposes, the relevant allegations of the complaint were generally that the plaintiff was a Shriner in the Murat Temple, that he belongs to the defendant Indianapolis Horse Patrol, Inc., which is a uniform unit affiliated with the Shrine, and that he also belongs to the Gatling Gun Club, another uniform affiliated unit. He charges that in the summer of 1958, he questioned the management and use of the proceeds of the Shrine Circus. That later he sold tickets for the Shrine Circus, and that credit for sale of such tickets could be credited to the various uniform affiliated units. He alleges that of the tickets he sold, he allocated a portion to be credited to the defendant Indianapolis Horse Patrol, Inc., and a portion to be credited to the Gatling Gun Club. He then alleges that certain directors of the defendant Indianapolis Horse Patrol, Inc. criticized him for making this allocation. He alleges that at a meeting on March 4, 1959, he was expelled as a member of the Indianapolis Horse Patrol, Inc. He further alleges that there was a second meeting on March 7, 1959, and that at that time a resolution was passed expelling him from membership for "actions unbecoming a member." At the latter meeting, certain statements are alleged to have been made by some of the defendants in the presence of the appellee. The complaint then alleges that all of these actions were taken pursuant to a "conspiracy to defame," that all of such actions were improper, and that as a result of the action of expulsion, the appellee lost considerable business.
The case was tried before a jury, and a verdict for $68,000 was rendered against all defendants. Judgment was entered on this verdict.
In determining this cause, it is fundamental that there is no cause of action for conspiracy as such. The cause of action is for damage resulting from a conspiracy. Miller, etc. v. Ortman, etc., et al. (1956), 235 Ind. 641, 136 N.E.2d 17; Grimm v. Baumgart (1951), 121 Ind.App. 626, 96 N.E.2d 915.
It is also fundamental, that a conspiracy is a combination of two or more persons, by concerted action, to accomplish an unlawful purpose or to accomplish some purpose, not itself unlawful, by unlawful means. Holloway v. Thompson (1942), 112 Ind.App. 229, 42 N.E.2d 421; Karges Furniture Co. v. Amalgamated, etc., Union (1905), 165 Ind. 421, 75 N.E. 877; Miller, etc. v. Ortman, etc., et al., supra.
On appeal, there are many specifications of error. The appellants strongly maintain that there is insufficient evidence to sustain the verdict of the jury and the judgment of the trial court. Taking all the evidence, there is grave question of the sufficiency. The judgment was against the Indianapolis Horse Patrol, Inc. and nine individual defendants. As to most of the individual defendants, the only evidence involving them is that they attended the directors' meeting, and voted for the expulsion of the plaintiff. It requires a considerable stretch of the imagination to infer that attending a meeting and voting alone implies a knowledge of and participation in a conspiracy which would involve the making of oral or written false statements. However, in view of our decision on the instructions tendered in this cause, it is not necessary for us to determine the sufficiency of the evidence.
An examination of both the allegations of the plaintiff's complaint and the evidence indicates that all matters which could be relied upon to constitute the defamation, which is the subject of the conspiracy charged, were in connection with the Shrine organization and the Indianapolis Horse Patrol, Inc. The allegations and the evidence involve the operation of the Shrine Circus and the meetings of the Board of Directors of the Indianapolis Horse Patrol, Inc. Under these circumstances, it is clear that a qualified privilege attaches to any statements and communications.
In 33 Am. Jur. Libel and Slander § 132, p. 131, the rule is stated as follows:
It has also been held that,
The doctrine of qualified privilege has been recognized under the common law from the earliest cases. The following cases in Indiana have recognized the doctrine of qualified privilege, under varying circumstances. See Henry v. Moberly (1898), 23 Ind.App. 305, 51 N.E. 497; Cadle v. McIntosh (1912), 51 Ind.App. 365, 99 N.E. 779; Kleizer v. Symmes (1872), 40 Ind. 562.
At the trial, the defendants tendered seven different instructions dealing with the doctrine of qualified privilege. We do not deem it necessary to set forth all of the tendered instructions in this opinion. Suffice it to say that in the instructions, the rule concerning qualified privilege was well covered in line with the authorities above cited. None of the instructions given by the court defined for the jury the doctrine of qualified privilege or enunciated the requirement of proof of malice made necessary by the application of the doctrine.
The doctrine of qualified privilege was relied upon by the defendants in the case, and was applicable to the allegations contained in the complaint and the evidence presented. A party is entitled to have his theory of the case made by the pleadings, issues and evidence properly presented to the jury in the instructions. 28 I.L.E. Trial, § 182, p. 168; Lawson et al v. Webster (1962), 133 Ind.App. 296, 181 N.E.2d 870; Lavengood v. Lavengood (1947), 225 Ind. 206, 73 N.E.2d 685. It was therefore error for the trial court to refuse to instruct the jury on the doctrine of qualified privilege.
In his brief, the appellee claims first that the error, if any, has been waived because the defendants did not object to evidence of statements, and "if such actions were privileged, they were inadmissible as evidence." Here obviously the appellee is confusing the qualified privilege
The appellee also maintained that such tendered instructions invaded the province of the jury to "impliedly determine an issue of fact on which there is no evidence whatever." It is sufficient here to say that the instructions tendered were in terms of the rules of law concerning qualified privilege and, where mandatory, instructed the jury that they should find for the defendants unless actual malice, combined with other requirements, were found to exist. Such instructions did not invade the province of the jury, but only instructed the jury as to determinations which they were required to make.
The appellee also argues that the doctrine of qualified privilege is inapplicable to this case, because there is evidence from which actual malice could be implied. Conceding, without deciding, that there may be evidence from which malice could be implied, it is equally true that under the evidence the jury could have found that no actual malice existed. The jury was entitled to decide either that there was actual malice, or that there was not actual malice. The jury should have been instructed on the law concerning qualified privilege, so that if they found there was no actual malice, they could have applied this rule of law.
The judgment of the trial court is reversed and this cause is remanded with instructions to grant the defendants' motion for new trial.
Arterburn & Myers, JJ., concur. Jackson, J., concurs in result. Achor, J., not participating.
NOTE. — Reported in 217 N.E.2d 626.