Begley v. Louisville Times Co., Inc.

• Citation: 115 S.W.2d 345,272 Ky. 805
• Parties: BEGLEY v. LOUISVILLE TIMES CO., Inc.
• Decision Date: 25 March 1938
• Court: Kentucky Court of Appeals

115 S.W.2d 345

272 Ky. 805

BEGLEY v. LOUISVILLE TIMES CO., Inc.

Court of Appeals of Kentucky

March 25, 1938

Appeal from Circuit Court, Whitley County.

Action by W. E. Begley against the Louisville Times Company, Inc. for libel. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Wm Lewis & Son, of London, A. T. W. Manning, of Manchester, and Sylvester V. Little, of London, for appellant.

H. H Owens, of Barbourville, J. B. Johnson, of Williamsburg, and Peter, Hayburn, Marshall & Wyatt and Wilson W. Wyatt, all of Louisville, for appellee.

MORRIS Commissioner.

This is an appeal from a judgment of the Whitley circuit court rendered upon a verdict of a jury in favor of appellee in conformity with a peremptory instruction, directed by the court after appellant had introduced testimony. It is insisted by appellant that the court committed error prejudicial to his rights in so directing the jury. Appellee contends to the contrary.

Appellee, admittedly, publishes and circulates "The Courier Journal," and on February 14, 1935, it published and circulated in the various counties of the state, and in the counties of Laurel, Clay, and Jackson, its edition of that date. At the time of the publication appellant was the circuit judge of the Twenty-seventh judicial district of Kentucky, composed of the three counties named, his place of residence being London, Laurel county.

By petition filed December 21, 1935, and a later amendment, it was alleged that appellee had willfully, falsely, and maliciously published, circulated, and caused to be distributed the issue mentioned above, containing certain libelous statements concerning plaintiff.

The article as published covered an entire page of the paper of that date. As copied in the record, it covers thirty-five pages, and excerpts from the article cover nine pages of the petition. After a reading of the entire article, so much as is set out in petition, and in appellee's brief, we find it sufficient to quote the following extracts:

"A Court House Ring dominates Clay county. The members of this ring, when elected to office, seem to be of one accord in the thought that they were elected to office for the purpose of protecting and favoring their friends and of persecuting their enemies. This dominant office-holding group comprising such a small percentage of the population are nevertheless able to control the politics of the county by threats, intimidation, and actual violence. *** Outlawry in Clay county, as one of the forces used to subjugate rivals, is encouraged by ruthless leaders, and courts, to an amazing extent, and is made the media of punishment for enemies and reward for friends.

"In an Associated News dispatch I have just read that the police in New York City had arrested 646 prisoners under a statute prohibiting any person to consort with known criminals. Most everyone it seems in Clay and adjoining counties know that certain prominent men--officials and ex-officials--possessed and were riding in stolen automobiles, which they knew were stolen, yet district, county and city officials not only consorted with these violators of the law but protected them while the courts have been used for the purpose of persecuting and intimidating officers who sought to enforce the law. ***

"The Circuit Judge of the district, which includes Clay county, is Judge W. E. Begley, of Laurel county. I am informed that he was elected upon a platform pledged to law enforcement. Since his election, he has been repeatedly informed that certain prominent men, including an ex-Circuit Judge, officials of Clay county, officers of his court, and certain prominent citizens were driving automobiles known to have been stolen. He promised to do his duty in connection with this matter, yet for some unknown reason, instead of causing indictments to be returned against these known violators of the law, the only thing done by his court in connection with the automobile theft was to permit and encourage the indictment of Clyde Jones for larceny and housebreaking, and the fixing of his bond at a large sum. ***

"It is reported that for some unknown reason Judge Begley, when organizing the last Gray Jury which indicted State Policeman Clyde Jones, but failed to indict the automobile thieves and the possessors of stolen cars, arbitrarily transferred two men who had been summoned to serve on the petit jury to the Grand Jury; one of these was made foreman and the other Clerk of the Grand Jury. It is understood that this 'switch' was made upon the suggestion of the Commonwealth's Attorney, who the evidence shows, sought the indictment of Jones and the protection of other alleged violators of the law. Many believe Judge Begley sincere and desirous of enforcing the law but apparently he is so dominated by the Commonwealth's Attorney that he finds time only to enforce minor infractions of the law while felonies remain unpunished. However, if he will not do his duty, either through political or other fear, he should either resign or be impeached. ***"

In addition to such facts as related, the petition alleged that by the distribution of the paper containing the alleged libelous article, particularly in the county of his residence, and in the counties comprising his judicial district, he had been greatly humiliated and caused to suffer much mental anguish and embarrassment. He also alleges the untruth of the statement, or such parts thereof as directly or indirectly made reference to him.

The cause, by agreement of parties, was transferred to Whitley County circuit court and all subsequent procedure was in circuit court of that county. The appellee demurred to the petition, and moved to require plaintiff to supply a copy of the newspaper containing the entire article, and to require plaintiff to separate the items of damage. The court overruled the demurrer, and the last-mentioned motion, but as far as the record shows did not pass on the second motion. The failure to do so is of no materiality.

In answer, appellee admitted the publication and distribution, but denied all other allegations, and pleaded affirmatively the following defensive matter: That it was a member of the Associated Press, and had received, in due process of distribution of news by that agency, the article which is the subject of complaint, and that in doing so it relied upon the accuracy and proven reputation of the said agency in transmitting articles or items of news to it, and newspapers throughout the country. That same was received by it through the medium stated, and it published the article in the best of faith as a proper news item, and without malice toward plaintiff, or without purpose or intent to injure him in any manner.

Appellee averred that the published article (from which excerpts were embodied in the petition) consisted of an official report made by the then Adjutant General to the Governor; that the report as published by it was filed by the Adjutant General with the Governor prior to the publication, or about February 13, 1935. Further, that it was released by the Governor to the Associated Press for the purpose of publication in various newspapers, and was a matter of public record and an official document. That prior to the publication the Adjutant General, in accordance with the law, held a court of inquiry at Frankfort; witnesses were called, testimony taken and preserved for the purpose of ascertaining the state of lawlessness in Clay county, Ky. and that the report to the Governor was the official report and opinion of the court of inquiry. It was asserted the report contained the findings of fact and good faith conclusions derived from the inquiry, and "because of the alleged official public nature of the report, it was privileged to publish it without becoming liable therefor," and it pleaded the privilege in bar of appellant's right of recovery.

Appellee then pleaded that its purpose and business is "to publish through the medium of the Courier-Journal, useful, proper and official information, including therein such items as pertain to the actions of various officials of the state, and officials generally, and the actions of such officers are matters of public, political and social interest and concern," and that it was privileged to publish, as it did, the report "without malice or ill will." In still another paragraph it was alleged that prior to publication of the complained-of article, the Governor had ordered military officers to Clay county for the purpose of investigating alleged criminal activities and lawless conditions, with authority to hear evidence and preserve testimony for the purpose of reaching a conclusion as to the true state of affairs. This inquiry, it says, was a matter of general public concern and interest, and its result proper to be brought to the attention of the public, and that the article published was the officially communicated result of the efforts of the Adjutant General and those acting under his directions. It was also pleaded that prior to the publication of the article, appellant was notified of the report and its intentions to release it for publication, calling upon plaintiff to make a statement, if he so chose, which it agreed to publish along with the article, but received no response. Appellant filed as a part of its answer the complete article as it appeared in the paper on the date named. It was addressed to the Governor, and was signed by the Adjutant General, officially.

Appellant filed general demurrer to the answer, the court overruling same. Later appellant filed reply, which controverted the allegations of the petition. In a second paragraph it was alleged that if the Adjutant General had held a court of inquiry, or heard evidence for the...