Shipp v. Patton

• Citation: 93 S.W. 1033,123 Ky. 65
• Parties: SHIPP v. PATTON.
• Decision Date: 22 May 1906
• Court: Court of Appeals of Kentucky

93 S.W. 1033

123 Ky. 65

SHIPP v. PATTON.

Court of Appeals of Kentucky.

May 22, 1906

Appeal from Circuit Court, Harrison County.

"To be officially reported."

Action by Nellie Patton against H. C. Shipp. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

M. C Swinford, C.J. Bronston, Hazelrigg & Hazelrigg, A. R. Burnam and Hanson Peterson, for appellant.

Berry &amp Webster and Jno. R. Allen, for appellee.

NUNN J.

The appellee instituted this action against appellant, and charged that he willfully and maliciously uttered and published of and concerning her, in the presence and hearing of divers persons, these words: "Miss Nellie, when she was employed as a clerk in my store, dishonestly took away goods from the store that did not belong to her. I found in her grip a lot of goods that she had dishonestly taken from my store and put in the grip, and I accused her of dishonestly taking these goods, and she broke down and cried and begged me not to discharge her because it would disgrace her, and I kept her a few days longer in the store, and then discharged her. I would say this to anybody, because I can prove it, and I wouldn't hesitate to go into her own family and say just what I have said to you." The appellant filed a demurrer to the petition, which was overruled. It is contended that this was error, for the reason that the words charged were not per se actionable. Appellant based this contention upon the theory that, as appellee was one of the clerks in appellant's store, she had such possession of the goods that, in taking them from the shelves, secretly, with the purpose to convert them to her use, she was not guilty of the crime of larceny, but only of a breach of trust.

The appellant's counsel refers to authorities which seem to sustain his position, but the weight of authority and the more reasonable rule appears to be opposed to it. In Robertson's Kentucky Criminal Law, vol. 1, § 420 "There is a difference between the terms 'custody' and 'possession.' Possession is the present right and power to control a thing. A person has the custody of property, as distinguished from the possession, where he merely has the care and charge of it for one who retains the right to control it, and who therefore retains constructive possession. Where goods are delivered by the master to his servant or other agent, he parts with the custody only, and not the possession; he has constructive possession. A servant, therefore, or other agent, who has merely the care and custody of his master's goods, is guilty of larceny if he converts them to his own use without his master's consent. Thus, where a clerk in a store takes money from the safe or cash drawer of his employer with a felonious intent, or removes goods from the shelves intending to steal them, he is guilty of larceny." See, also, on the same point, Warmoth v. Commonwealth, 81 Ky. 133. Admitting, however, the contention of appellant's counsel that appellee's possession of the goods was such that, in taking and converting them, she was not guilty of the crime of larceny, yet the words charged in the petition show that she was guilty of the offense provided by a statute enacted in 1902--that of fraudulently converting property, held in a trust relation, without the consent of the owner. See Commonwealth v. Barney, 74 S.W. 181, 24 Ky. Law Rep. 2352, and Allen v. Brady, 83 S.W. 565, 26 Ky. Law Rep. 1173.

The appellant filed an answer and several amended answers, and in substance denied that he willfully or maliciously uttered or published the words charged, or that he spoke or published the words charged, but alleged in substance that he spoke and published them in effect as charged, except the word "dishonestly," which word he denied having used of and concerning the plaintiff. By a second paragraph he pleaded that the words actually used by him of and concerning the appellee were spoken in confidence and were under the circumstances a privileged communication, and gave the facts and circumstances showing the privilege. Upon motion of appellee, appellant was required to elect whether he would stand by his denial of having charged appellee with taking the goods "dishonestly," or upon his plea of privileged communication in the second paragraph. Under protest he elected to stand upon the defense of privileged communication. The substance and effect of the pleadings of appellant were to deny the malice and the use of the word "dishonestly" whenever it occurred in the alleged slanderous words charged, and an admission of the use of all the other words. By the action of the court he was forced to admit the use of the word "dishonestly" before being allowed the right of his plea of privilege. This placed the defendant at a great disadvantage. The proof showed that in relating the communication to Dr. Vanderen, to whom the alleged...