# Patten v. Smith > Indiana Court of Appeals · February 24, 1977 · 172 Ind. App. 300 URL: https://www.frixlaw.com/law-library/cases/9744772 ## Case - **Full name:** Maurice J. Patten D/B/A Warsaw Monument Works v. Richard Smith D/B/A Smith Memorial Company - **Court:** Indiana Court of Appeals - **Decided:** February 24, 1977 - **Citations:** 172 Ind. App. 300; 360 N.E.2d 233; 1977 Ind. App. LEXIS 759 - **Precedential status:** Published - **Opinion:** Concurrence by Garrard - **Judges:** Staton, Garrard - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744772 ## Opinion text Opinion Concurring in Result Garrard, J. I adhere to my dissent in Aafco Heating & Air Conditioning Co. v. Northwest Pub. Inc. (1974), 162 Ind. App. 671 , 321 N.E.2d 580 , and reiterate that actual damages should be allowed for the negligent publication of a defamatory falsehood involving a private individual who is neither a public official nor a public figure. However, even under the majority holding in Aafco, reversal should not be predicated upon the instructions relied upon in the majority opinion. Assuming appellant Patten was entitled to the qualified privilege described in Aafco, the majority correctly observes that the court should have defined for the jury “reckless disregard.” However, the issue presented by the appeal is whether the court erred in refusing defendant’s Instruction 8, set forth supra at 304. For the court’s action to constitute reversible error, the tendered instruction must have been a correct statement of the law. See, e.g., Mosier v. Stoll (1889), *308 119 Ind. 244 , 20 N.E. 752 ; Indianapolis Transit System, Inc. v. Williams (1971), 148 Ind. App. 649 , 269 N.E.2d 543 ; NIPSCO v. Otis (1969), 145 Ind. App. 159 , 250 N.E.2d 378 . While the Court in St. Amant v. Thompson (1968), 390 U.S. 727 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 , recognized that reckless conduct would be shown where the defendant in fact entertained serious doubts as to the truth of his publication, the Court also stated, “ ‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication. . . .” 390 U.S. 730 , 88 S.Ct. 1325 , 20 L.Ed.2d 267 . This case represents one such variation. The essence of Smith’s claim was not that the matters reprodüced in the montage were false and libelous per se. It was rather that they created a libelous innuendo that all mausoleums, or at least the one proposed by Smith, would be similarly defective. Thus regardless of the truth of the items contained in the publication, the jury could properly have found Patten published with “constitutional malice” if he entertained serious doubts that Smith’s mausoleum would be subject to the defects described. 1 Defendant’s tendered Instruction 8 restricted the jury to considering whether the defendant entertained serious doubts as to the truth of the matters contained in the pamphlet. As such, it was misleading and an incorrect statement of the law. The court properly refused the instruction. (Upon the same basis the court properly refused defendant’s tendered Instruction 3 which instructed the jury that truth is a *309 deferisé and if the statements in the pamphlet were true their verdict would be for the defendant.) I agree that plaintiff’s Instruction 9 which was given by the court inadequately defined malice. However, the instruction did not mandate a finding and when considered with the other instructions given, especially defendant’s Instruction 6, which is quoted in the majority opinion, I find the jury was adequately instructed. The defendant, however, also asserted error in an instruction which advised the jury that the defendant had the burden of proving a qualified privilege and then stated, “You are instructed, however, that false statements of facts disparaging the quality of a competitor’s goods or the conduct of his business, are regarded as unfair methods of competition, and are never privileged.” Even in the absence of the qualified constitutional privilege adopted by the' Aafco majority,''this language would require reversal in this case. The instruction was erroneous and prejudicial because the qualified privilege (whether reckless disregard or negligence) would attend the communication even if the tort in question were labeled interference with commercial or economic relations rather than libel in its historical sense. 2 I therefore concur that the judgment must be reversed. Note. — Reported at 360 N.E.2d 233 . . In my own view a defamation by this kind of innuendo underscores the problem created by the majority opinion in Aafco since it rewards the publisher for making no reasonable inquiry to ascertain whether his target is a proper subject for condemnation. Compare, e.g., the National Labor Relations Board’s opinion in Plochman & Harrison — . Cherry Lane Foods, Inc. (1962), 140 N.L.R.B. ■— (#11), 51 L.R.R.M. 1558 , holding that an allegedly accurate film dramatization of a violent strike so effectively tarred and feathered the labor movement that its showing to employees prior to the conduct of a representation election would per se require that the election be set aside. . Several writers make this distinction. See, e.g., Prosser, Law of Torts (4th Ed.) Section 128, citing sources and pp. 924, 925 recognizing the availability of qualified privileges. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744772. Public record. Not legal advice.