The opinion
SULLIVAN, Judge,
dissenting.
I would affirm the judgment of the trial court.
Dr. Cua does not argue that any instruction given to the jury advised that whether the report statements were defamatory was a question of fact rather than one of law. If such had been the case, it would have been incumbent upon Cua to object to that instruction or instructions and to preserve the alleged error by argument in her brief.
Dr. Cua argues solely that the trial court erred in refusing her tendered instruction #5. As the majority points out in its footnote 3, that instruction is overbroad and therefore so defective as to require modification upon retrial.
It is not error to refuse a defective instruction. Our Supreme Court has even held that it is not error to refuse an instruction which is correct except for a minor technicality. In Van Sickle v. Kokomo Water Works Co. (1959) 239 Ind. 612 , 158 N.E.2d 460 , the Court observed that the question upon appellate review is whether the Court had the duty to give the instruction “precisely as presented” (emphasis supplied) 239 Ind. at 618 . This Court has reflected that rigid position. State Highway Commission v. Jones (1st Dist. 1977) 173 Ind.App. 243 , 363 N.E.2d 1018 ; Northern Indiana Public Service Co. v. Otis (1969) 145 Ind.App. 159 , 250 N.E.2d 378 .
My dissent in this regard is not intended to detract from what I consider the affirmative duty of the judge to fully and fairly instruct the jury. Nevertheless I am unable to vote to reverse a judgment for failure to give a particular tendered instruction which is admittedly defective, though minimally so.