Abbott v. Vinson

• Decision Date: 08 October 1929
• Citation: 230 Ky. 786,20 S.W.2d 995
• Parties: ABBOTT v. VINSON.
• Court: Kentucky Court of Appeals

20 S.W.2d 995

230 Ky. 786

ABBOTT v. VINSON.

Court of Appeals of Kentucky

October 8, 1929

Appeal from Circuit Court, Lawrence County.

Action by Mrs. Mary Abbott against Robert L. Vinson. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded.

See also, 20 S.W.2d 996.

C. F See, Jr., and W. J. Roberts, both of Louisa, and John F Coldiron, of Catlettsburg, for appellant.

Cain &amp Thompson, of Louisa, and Waugh & Howerton, of Ashland, for appellee.

McCANDLESS C.J.

In this action for slander it is alleged that defendant falsely, etc., "spoke and published in the presence and hearing of Lucille Roberts, Ruby Roberts, Lenore Roberts, Miss Jones, John D. Marcum, Jay Roberts, and divers other persons, of and concerning plaintiff, in substance these words: 'If you had not sold Paul Frazier dope, he would have been alive. You sold him the dope that caused him to kill himself. My wife saw you sell him an eight-ounce bottle of dope" D'-thereby falsely and maliciously imputing to plaintiff the crime of unlawfully selling and furnishing to another person drugs and narcotics, in violation of the laws of the United States of America, known as the Harrison Narcotic Act and amendments thereto (26 USCA §§ 211, 691, et seq.). Damages were asked in the sum of $25,000.

A demurrer was sustained to this pleading, and in an amended petition, after reaffirming the allegations of the original petition, it was alleged that "at the time and on the occasion mentioned the defendant used the further language concerning plaintiff, 'That the plaintiff had sold Paul Frazier morphine and paregoric, and that Mrs. Lutie Vinson, who was at the time the wife of the plaintiff, had seen defendant sell dope to Paul Frazier, and that she saw Paul Frazier come out of there, and she had taken it out of his pocket,' and that defendant further on said occasion stated that 'he was going to break the plaintiff up or put her in the federal prison,' * * * that all of said statements were false, and willfully and maliciously made on said occasion, and were made by defendant in the presence of Lucille Roberts, Ruby Roberts, Lenore Roberts, Miss Jones, John D. Marcum, Jay Roberts, and divers other persons, and that defendant thereby imputed to and charged defendant with the commission of a felony, to wit, the selling of morphine and other narcotic drugs, in violation of the laws of the United States, etc., that it was intended by defendant, at the time he made said false statements, to impute to plaintiff the commission of a felony, and that it was so understood by the persons in whose presence and hearing the statement was made"-the further allegation being that Paul Frazier had formerly lived in the neighborhood, and for a long period next before his death had been a drug addict and constant consumer of morphine and narcotic drugs, which fact was known to defendant and plaintiff, and each of the persons in whose presence and hearing the statements were made. The court sustained a demurrer to the petition as amended, and, plaintiff failing to plead further, the petition was dismissed. She appeals.

It is not alleged in the petition that plaintiff is a physician, a druggist, or a drug clerk; consequently no cause of action is stated for an injury to her in her profession or occupation. Also there is no allegation of special damages; therefore unless the quoted language is actionable per se to plaintiff as an individual, the petition was demurrable. To be actionable or slanderous per se to the individual, words falsely spoken must impute a crime involving moral turpitude, or an infectious disease, likely to exclude him from society. Spears v. McCoy, 155 Ky. 1, 159 S.W. 610, 49 L. R. A. (N. S.) 1033; Hickerson v. Masters, 190 Ky. 168, 226 S.W. 1072; Williams...