Bishop v. Smith

• Decision Date: 13 March 1923
• Parties: BISHOP v. SMITH.
• Court: Kentucky Court of Appeals

248 S.W. 538

198 Ky. 230

BISHOP v. SMITH.

Court of Appeals of Kentucky.

March 13, 1923

Appeal from Circuit Court, Whitley County.

Action for slander by Grace Bishop against Nell Smith. Petition dismissed after demurrer thereto was sustained, and plaintiff appeals. Affirmed.

R. L Pope, of Knoxville, Tenn., for appellant.

Stephens & Steely, of Williamsburg, for appellee.

McCANDLESS J.

In an action for slander, the following defamatory words were alleged:

"Mrs Bishop would come here and phone for Dr. Stonecifer to come to her house, and go back home and take her baby to her mother's and go back and dress up for the doctor and pull the window blinds down."

A demurrer was sustained to the petition, and an amendment was filed in which it was alleged:

That "the defendant was mad at the plaintiff and that she had frequently talked to different persons about her in a derogatory manner, and in this conversation meant to charge and did charge, that plaintiff was guilty of adultery, and that it was so understood by her auditors."

To the petition as thus amended a demurrer was sustained. In a second amendment it was alleged that in the same conversation set out in the petition defendant said of and concerning plaintiff:

"Dr. Stonecifer spends most of his time at Grace Bishop's, and her husband, Bill Bishop, ought to know it."

The demurrer was also sustained to the petition and both amendments, and, plaintiff declining to plead further, her petition was dismissed.

By statute a charge of incest, fornication, or adultery is slanderous per se, in this state. Further the tendency of modern decisions is to liberalize the strictness of the former rulings of the common law in reference to actions of this character.

"As a rule the words complained of are to be taken and understood in that sense which is most natural and obvious and according to the ideas they are calculated to convey to those they are addressed. It is not essential that the charge be made in direct terms but it is sufficient if the words used are such as to impute unchastity, adultery or fornication, and was so understood by those who heard them." 17 R. C. L. p. 282.

Still they must clearly and unequivocally import the charge alleged.

Appellant relies on the case of Martin v. White, 188 Ky. 156, 221 S.W. 529, in which the language was:

"You often went to Dr. Duvall's office, pulled the blinds down and locked the door, and stayed for hours, and got the medicine you went for. You are a bitch, and I can prove it.'

The court called attention to all of the various allegations and reached the conclusion that the natural, obvious, and unequivocal meaning of the language used clearly imputed guilty conduct, but was careful to show that it was following the established rule; in this regard saying:

"It is true that we have said in a number of cases in substance that the slanderous words must clearly and unequivocally import the particular accusation complained of. Moore v.

Johnson, 147 Ky. 585; McNamara v. Shannon, 8 Bush, 547; Tharp v. Nolan, 119 Ky. 870; and Wooten v. Martin, 140 Ky. 781. But that rule does not necessarily imply that if the entire language employed clearly imported, according to its reasonable meaning, the slanderous charge, it would not be 'clearly and unequivocally' made, though not made in terms. What is meant by the rule just referred to is that the charge must be couched in language so clear that the intention of the defendant * * * is not reasonably susceptible of but one conclusion, which is a guilty one."

The words: "Mrs. Bishop would come here and phone for Dr Stonecifer to come to her house, and go back home and take her baby's to her mother's, and go back and dress up for the doctor and pull the blinds down." "Dr....