Baker v. Clark

• Decision Date: 06 February 1920
• Citation: 218 S.W. 280,186 Ky. 816
• Parties: BAKER v. CLARK.
• Court: Kentucky Court of Appeals

218 S.W. 280

186 Ky. 816

BAKER v. CLARK.

Court of Appeals of Kentucky.

February 6, 1920

Appeal from Circuit Court, Fayette County.

Action by A. M. Baker against J. D. Clark. Judgment of dismissal and plaintiff appeals. Reversed, and new trial granted, with directions.

J. W Cammack, of Owenton, and J. T. Farmer, J. A. Edge, and Byrd &amp Vaughn, all of Lexington, for appellant.

Allen & Duncan, of Lexington, for appellee.

THOMAS J.

On October 11, 1915, there appeared in the Lexington Herald, a newspaper published at Lexington, Ky. this article:

"Authority to Use Name Denied by Hugh Mahin.

Keene Man to Withdraw from Receivership against Burley.

Will Act Promptly.

Other Stockholders of Company may Join Mahin in Motion.

Alleging that the use of his name is unwarranted and unauthorized, Hugh Mahin, of Keene, Jessamine county, former representative of his county in the state Legislature, stated his determination last night to take proper steps in court to have his name as plaintiff withdrawn in the receivership suit of J. L. Vallandingham and others against the Burley Tobacco Company. Mr. Mahin will have to support him, he said, other citizens of Keene, who with him will assert that their names as parties to the suit were used unknowingly, among them being Benjamin Wilson, John Wood, James Wood, and perhaps others.

Mr. Mahin and Mr. Wilson, who stated by long-distance conversation last night that they had only yesterday learned of their interest in the suit, did sign a paper some two months ago asking for a financial statement of the Burley Tobacco Company, of which they were stockholders, but that they did not desire to become parties to any suit against the company which would inconvenience it and especially which would request a receivership and dissolution of the corporation.

Their names were obtained to the paper asking for a sight of the company's books by A. M. Baker and L. E. Pearce, Mr. Mahin and Mr. Wilson stated last night, who also said yesterday that the names of James Wood and John Wood had been obtained to a document represented to them to call for only financial statement of the company of which they are stockholders. Mr. Baker, Mr. Pearce and George Sandusky are known to have circulated a petition in the Keene neighborhood a short time before the suit against the Burley Tobacco Company was filed in the Fayette circuit court. Mr. Baker and his partner at law, A. A. Bablitz, with a Crittenden county attorney, filed the suit seeking the receivership of the company.

The men at Keene were informed yesterday by fellow members of the Burley Tobacco Company that they were plaintiffs in the suit requesting a receiver and were indignant at the unwarranted use of their names, they declared. Mr. Mahin, who is a prominent citizen of Jessamine county, asserted his intention of taking proper steps to have his name withdrawn from the suit, and likely will appear in court Wednesday when the Fayette circuit court first convenes, or some time this week. The financial statement which they first sought and which they say they believe themselves to be asking for, since has been made public by the Burley Tobacco Company and published in the public press.

Attorneys Baker and Bablitz first filed a suit against the Burley Tobacco Company several weeks ago alleging the fraudulent and careless use of the company's money and property and seeking a receivership for the gigantic corporation, representing, according to the petition of J. L. Vallangingham and seven or eight others as plaintiffs, among them the names of Mahin, Wilson and the Wood brothers.

Mr. Mahin, while asserting his intention to have his name withdrawn as plantiff in the suit, did not say he would take any action against the attorneys for the unauthorized use of his name. Mr. Wilson asserted that he did not read the petition, which he signed, closely, but that it was represented to him only to call for a financial statement and not to ask for any receivership. Mr. Mahin said he read the document closely and that it asked only for the financial statement.

At the recent annual meeting for the election of officers the Burley Tobacco Company issued a statement of the condition of their books, and refuted the charges preferred in the suit filed by Vallandingham and other prior suits alleging fraud, mismanagement and careless handling of the funds and property of the Burley Tobacco Company."

Alleging that the defendant and appellee, J. D. Clark, willfully, falsely, and maliciously printed and published and requested, procured, and commanded to be printed and published that article, the appellant and plaintiff below, A. M. Baker, filed this suit against Clark to recover $10,000 damages for the libelous publication.

In the petition it is also alleged that the defendant intended to and did falsely and maliciously charge plaintiff, who is a regularly admitted and practicing attorney at the Lexington bar, with the unprofessional conduct of soliciting clients, and with having been guilty of like conduct in bringing a suit without authority of the persons for whom it was brought, and that he was guilty of the common-law offense of barratry, and also guilty of such conduct as to subject him to some character of legal action at the hands of the persons whom he pretended to represent.

The petition was afterwards amended in some 26 paragraphs, in which it was alleged that defendant, after the publication of the article in the newspaper, procured copies thereof and mailed them separately to 26 or more named persons, and that in each of the mailed copies the slanderous article was marked, and plaintiff asked damages in the sum of $5,000 for each of these publications.

The answer was a single pleading and responded to the original petition and to the different paragraphs of the amended petition. Answering the original petition, it denied the publication or procurement of the publication of the article complained of on October 11, 1915, or at any time, or any intention to charge plaintiff therein with any of the offenses or charges relied on in the petition, or that the article did charge him with being guilty of any such offenses or charges.

The answer to the various paragraphs contained in the amended petition admitted the mailing of the paper containing the article to each of the persons named, but denied any intention to falsely charge plaintiff with being guilty of any of the offenses alleged to be contained in the article, or that it did charge him with being guilty of any such offenses, and, further, that the matters contained in the article were true. In another paragraph the defendant relied on a qualified privilege in defense of the publication of the article by mailing the paper to the various persons named in the amended petition.

A reply made the issues, and upon trial the jury, under instructions from the court, returned a general verdict for the defendant, which was followed by a judgment dismissing the petition, and, plaintiff's motion for a new trial having been overruled, he prosecutes this appeal.

We will not undertake to enumerate or discuss all of the grounds relied on for a reversal, but will content ourselves with a consideration of only those errors which we deem material and prejudicial, and from which we have reached the conclusion that a reversal must be ordered.

The first question presented is whether the article is per se libelous. The long recognized legal distinction between defamatory publications which are per se libelous, and those which are not, is that in the former there is a conclusive presumption of malice and damage, while in the latter the burden is on the plaintiff to prove both malice and damage. It is also true that defamatory matter printed and published may be per se actionable, while the same matter orally published would not be so. 25 Cyc. 250; 17 R. C. L. 263. The foundation for this distinction between oral and printed defamation is that the latter is generally more extensively circulated and is of a more enduring form than the former, which distinction would seem to be one affecting only the extent of plaintiff's damages, and not as furnishing authority for separate classification of the two kinds of publication. Cyc. supra, 251-253. But, however this may be, the distinction is now too well rooted in the law to call it in question.

It is not necessary to a decision of the question presented by this record, nor is it our intention, to give a general classification of what defamatory publications are libelous or slanderous per se, since we are concerned only with the particular publication involved. It is sufficient to say that it is a general rule without exception that--

"Published words, whether written or oral, are actionable if they directly tend to the prejudice or injury of any one in his profession, trade, or business." Cyc. supra, 326; 17 R. C. L. 305; Register Newspaper Co. v. Worten, 111 S.W. 693, 33 Ky. Law Rep. 840; and Axton-Fisher Tobacco Co. v. Evening Post Co., 169 Ky. 65, 183 S.W. 269, L. R. A. 1916E, 667, Ann. Cas. 1918B, 560.

And this rule as applied to the profession of attorneys at law makes a published article per se libelous which charges them with any unprofessional conduct, such as unfaithfulness to clients, or the violations of any of the standard rules of professional ethics, or which "imports a lack of qualities essential to a lawyer in his professional character." Cyc. supra, 333; 17 R. C. L. 307; Register Newspaper Co. v. Worten, supra. In stating this rule the text in R. C. L. says:

"It is well settled that any statement published of an attorney at law with respect to his profession is actionable if it tends to injure or disgrace him as a member of his

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