Blackburn v. Clark

• Decision Date: 12 June 1897
• Citation: 41 S.W. 430
• Parties: BLACKBURN et al. v. CLARK.
• Court: Kentucky Court of Appeals

41 S.W. 430

BLACKBURN et al. v. CLARK.

Court of Appeals of Kentucky.

June 12, 1897

Appeal from circuit court, Pike county.

"Not to be officially reported."

Action by John H. Blackburn and Susan Blackburn against Calvin Clark, for slander. Petition dismissed on demurrer, and plaintiffs appeal. Affirmed.

J. M Roberson and S. M. Cecil, for appellant.

Auxier & Auxier and Connolly & Connolly, for appellee.

BURNAM J.

In this action for slander the plaintiffs allege in their petition that the defendant, Clark, did, in the presence and hearing of divers persons, falsely and maliciously speak of and concerning the female plaintiff, Susan Blackburn, these words: "Tell Susan (meaning the female plaintiff) and the young ones to bring back my door they stole from my house," or "Tell Susan (meaning the female plaintiff) to bring back the door she and the young 'uns stole from my house," thereby meaning to charge, and did charge, that female plaintiff was guilty of stealing a door shutter from the house of defendant, and that it was so understood by those who heard it. To the original and amended petitions defendant filed a general demurrer, which the court below sustained, dismissing the petition, and from that judgment this appeal is prosecuted.

The question involved in this appeal is, are the words set forth in the petition actionable in themselves? and this is determinable by the nature and degree of the offense which they impute to the plaintiff. Under the English rule, words which impute that plaintiff has been guilty of a crime punishable with imprisonment are actionable without proof of special damages, but, if the offense imputed be only punishable by penalty or fine, the words will not be actionable without proof of special damages. See Odgers Sland. & L. 54. Judge Cooley, in his treatise on the Law of Torts, says: "It is agreed on all hands that it is not always prima facie actionable to impute to one an act which is subject to indictment and punishment. Importance in the law of defamation is attached to the inherent nature of the indictable act, and also to the punishment which the law assigns." In the leading case of Brooker v. Coffin 5 Johns. 190, the court says: "In case the charge if true, will subject the party charged to an indictment for crime involving moral turpitude, or subject him to an infamous punishment, then the words will, in themselves, be actionable; and this test has...