Beiser v. Scripps-McRae Pub. Co.

• Decision Date: 20 May 1902
• Citation: 113 Ky. 383,68 S.W. 457
• Parties: BEISER v. SCRIPPS-McRAE PUB. CO. [1]
• Court: Kentucky Court of Appeals

68 S.W. 457

113 Ky. 383

BEISER v. SCRIPPS-McRAE PUB. CO. ^[1]

Court of Appeals of Kentucky.

May 20, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by Joseph Beiser against the Scripps-McRae Publishing Company for libel. Judgment for defendant, and plaintiff appeals. Reversed.

M. H McLean, for appellant.

Harper & Allen and B. F. Graziani, for appellee.

DU RELLE, J.

This action was brought by appellant for libel, in publishing of and concerning appellant the following article in the Kentucky Post newspaper:

"Took a Horse--Elsmere is in a State of Excitement--Charge is Preferred against the Town Marshal. The little town of Elsmere, south of Erlanger, is in a state of great excitement over a technical charge of horse stealing preferred against Joseph Beiser, the town marshal, by Adam Guth, one of the town's best-known citizens. Monday Guth went before Squire Childress and alleged that the marshal had, without reason, taken his horse and put it in the pound, for the purpose of obtaining the $1.00 fine put on owners whose horses run at large. Guth alleges that his horse was not running at large, but that it was taken from his yard early Monday morning, where it was grazing. Mr Guth was very indignant over the affair, and he claimed to the court that it was a common practice to take horses from pastures and put them in pound. When the case is tried before the squire, the whole town will turn out to watch the proceedings. Marshal Beiser, in emphatic language denies that he took the horse from the yard."

The answer of the company admitted the publication, but denied that it was false or malicious. In the third paragraph it pleaded that it employed careful and diligent reporters, and enjoined them to exercise great care as to the truthfulness of statements published, and to refrain from all unjust or malicious statements. In the fourth paragraph it pleaded the truth of the article; that Beiser was town marshal, as therein stated; that Guth made to the magistrate the charges therein set forth; that the town was in a state of great excitement over the charge, and that Beiser did deny it; and that the publication did not, and was not designed to, approve the charge made by Guth, but merely to set forth the contention of the parties with respect thereto. The fifth paragraph set up that Squire Childress was a justice of the peace, and that the article was merely a fair report of a complaint preferred before him, and was privileged. The sixth paragraph averred that Beiser, as town marshal, was a public officer, whose official conduct was a matter of legitimate public concern, and the fact of the charge preferred by one of the citizens was a matter of public concern, which it was the duty of the publisher of the newspaper to fairly state to the public; that the article was no more than a publication, in good faith and without malice, of the facts of a matter in which the citizens had a legitimate interest. The seventh paragraph alleged that the charge was a matter of common notoriety, and the publication was a fair and impartial publication of current news. A demurrer to the third, four, fifth, sixth, and seventh paragraphs was sustained; and the fourth, fifth, sixth, and seventh paragraphs were amended in conformity with the ruling of the court, which held that they did not sufficiently aver that a judicial proceeding had taken place. The amendment averred that the defense set up in those paragraphs was based on a judicial proceeding before the magistrate, and that Guth appeared before him and made an affidavit for the arrest of Beiser. The amendment seems to abandon the defense that the publication was merely a legitimate criticism of an official action of a public officer. Whether this be so or not, we think it unnecessary to consider that defense in the case. The reply denied that Guth appeared before the magistrate and made an affidavit for Beiser's arrest, and denied that there was any judicial proceeding instituted or affidavit for Beiser's arrest filed before the magistrate. It also denied that the publication was a fair and impartial report, or was made in good faith or without malice, or for the purpose of furnishing the public with a matter of news in which it had a legitimate interest, or that the matter was one of common notoriety.

After a jury was impaneled and the case stated, Beiser moved the court to adjudge the burden of proof, and, though requested by the court, declined to make his motion more specific. The publishing company then moved that the burden of proof be adjudged to rest upon it, which motion was objected to by Beiser's counsel. Beiser's counsel then moved the court to require the company to assume the burden of proof and the court overruled the motion, to which Beiser excepted. While Beiser's counsel seems to have been playing for position in his course of action upon the burden of proof, his final motion was to place the burden of proof upon the publishing company, and it would seem he was entitled to have the burden thus placed. The publication was admitted, and the facts to show that it was a privileged publication were sufficiently pleaded, and these facts were fully denied by Beiser. Therefore, if no testimony was introduced, the plaintiff, Beiser, was entitled to a verdict; and while it has been held that to deprive the party thereto entitled of the burden of proof, against his objection, is prejudicial error, it would also seem to be prejudicial to deprive him of his right to rely upon the prima facie case in his favor made out by the pleadings. It is true, as contended for appellee, that it has been held that, if the occasion of the publication is determined by the court to have been one of qualified or prima facie privilege, "the burden of proving malice in fact, or express malice, is then upon the plaintiff." Smith v. Com., 98 Ky. 438, 33 S.W. 419; Stewart v. Hall, 83 Ky. 380. Obviously, however, this ruling does not apply to a case like the one at bar, where the sole question of fact in dispute appears to be...