Caslin v. General Elec. Co., 80-CA-430-MR

• Decision Date: 07 November 1980
• Docket Number: No. 80-CA-430-MR,80-CA-430-MR
• Citation: 608 S.W.2d 69
• Parties: Richard L. CASLIN, Appellant, v. GENERAL ELECTRIC COMPANY and Francis H. Boos, Appellees.
• Court: Kentucky Court of Appeals

Page 69

608 S.W.2d 69

Richard L. CASLIN, Appellant, v. GENERAL ELECTRIC COMPANY and Francis H. Boos, Appellees.

No. 80-CA-430-MR

Court of Appeals of Kentucky.

Nov. 7, 1980.

George E. Riggs, Jr., Riggs & Walton, Louisville, for appellant.

John E. Tarrant, Edwin S. Hopson, James R. Higgins, Jr., Louisville, for appellees; Tarrant, Combs & Bullitt, Louisville, of counsel.

Before HOWARD, LESTER and VANCE, JJ.

LESTER, Judge.

This is an appeal from a summary judgment which determined that appellant's libel action was barred by a statute of limitations and that the matter asserted as libelous was privileged and unpublished.

Appellant, Richard L. Caslin, a patent attorney, filed this action against his employer and immediate supervisor, Francis H. Boos, on April 28, 1978, alleging that certain written performance appraisals, prepared March 1, 1974 and March 21, 1977, respectively, were libelous in nature and published to other employees or agents of General Electric. Even though appellant attempts to deny that the earlier report is involved in his case, he, nevertheless, relies thereon in numerical paragraph eight of his complaint and makes repeated references to "publications" therein. Since only two appraisals are involved, we construe the complaint as being couched on both documents.

Caslin further alleged that besides being libelous, the efficiency reports were published by the author, Boos, to Boos' immediate supervisor, at least in the instance of the 1977 document, one C.H. Lake, among others. No allegation is made that the appellees concealed or attempted to conceal the papers from appellant, but he does make this argument for the first time on appeal. It is elementary that a reviewing court will not consider for the first time an issue not raised in the trial court.

Along with his complaint, Caslin filed exhibits, which were copies of the appraisals. These became integral parts of the pleading. CR 10.03, Shockey v. Pelfrey, 314 Ky. 441, 235 S.W.2d 1017 (1951). Even though appellant makes no mention of the date of publication to Lake of the 1977 report, in the exhibit Lake's signature appears as having reviewed the material on March 25, 1977, and it was given to Caslin on April 29, of the same year. Absent publication, there can be no libel, Graziani v. Ernst, 169 Ky. 751, 185 S.W. 99 (1916), W. Prosser, Torts § 113 (4th Ed.1977), 50 Am.Jur.2d Libel and Slander § 146, 406, and it is the publication of the alleged libelous matter that causes the defamation or injury thus commencing the running of the one year statute of limitations provided by KRS 413.140(1)(d). 50 Am.Jur.2d, Libel and Slander § 390. See generally, Barnett v. Louisville & Nashville R.R. Co., 407 F.2d 1333 (6th Cir. 1969); Hoskins Adm'r v. Kentucky Ridge Coal Co., Ky., 305 S.W.2d 308 (1957) and as to libel, Lashlee v. Sumner, 570 F.2d 107 (6th Cir. 1978). Appellant would distinguish the last cited case on the basis of concealment, but such issue was never pleaded or raised in the court below. By virtue of appellant's own pleadings which provided the publication (if such there was) date of March 25, 1977, and the time of filing his action (April 28, 1978), the trial court was correct in sustaining the motion for summary judgment based upon limitation of action.

What we have written thus far could conclude this appeal, but since the court below also found that there was no actionable publication of any libelous material and that even if it had been of such a nature it was privileged, and we believe some brief comments...