Commercial Tribune Pub. Co. v. Haines

• Decision Date: 01 February 1929
• Citation: 228 Ky. 483
• Parties: Commercial Tribune Publishing Company v. Haines.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 483

Commercial Tribune Publishing Company v. Haines.

Court of Appeals of Kentucky.

Decided February 1, 1929.

1. Libel and Slander. — Defamatory matter complained of should be construed as a whole, and language employed therein should receive its common and ordinary acceptation in light of conditions and circumstances under which it was published.

2. Libel and Slander. — Defamatory matter, printed or spoken, charging an officer with neglect of his official duties, so as to disqualify him for punctual performance and to render him unfit to discharge them, is actionable per se, and especially so when printed and circulated.

3. Libel and Slander. — In cases of words actionable per se, malice will be presumed, but defendant may overcome presumption with his proof, or by showing that publication was under qualified privilege.

4. Libel and Slander. — Where defendant overcomes presumption of malice from actionable words per se by proof, or by showing that publication was under qualified privilege, burden of establishing malice is cast upon plaintiff.

5. Libel and Slander. — In cases of words actionable per se, where defendant introduces evidence casting burden of proving malice, plaintiff discharge burden by proving either express malice, or that publication was false, from which fact implied malice will be presumed.

6. Libel and Slander. — Where defamatory language complained of is unambiguous, its construction is one of law for court, and its meaning as well as intent of defendant in employing it, should not be submitted to jury.

7. Libel and Slander. — Publication, stating that motorcycle policemen seemed to have strangely distorted ideas of duty, and that they were glaring examples of uselessness, to such extent that they were deadheads and needed weeding out, and that city should start housecleaning with motorcycle policemen and work upward to unqualified men holding bigger positions, according to common and usual acceptation of terms employed, accused motorcycle policeman of neglecting his official duties and was libelous.

8. Libel and Slander. — In action for libel by motorcycle policeman charged in publication with having neglected his officail duties evidence showing that plaintiff was not only an efficient officer, but that he punctually and assiduously performed his duties and had never been reprimanded by his superiors in office, held competent.

9. Libel and Slander. — In action for libel by motorcycle policeman against newspaper company publishing article accusing plaintiff of neglect of official duties, question whether defendant proved truth of publication held for jury.

10. Libel and Slander. — Plaintiff was entitled to recover punitive damages if publication of defamatory matter was both malicious and false.

Appeal from Kenton Circuit Court.

ROUSE & PRICE and POGUE, HOFFHEIMER & POGUE for appellant.

CHARLTON B. THOMPSON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellant and defendant below, the Commercial Tribune Publishing Company, is a corporation with its principal office in Cincinnati, Ohio, and at the times involved in this litigation, and prior thereto, it published and issued a daily newspaper called "The Commercial Tribune," which circulated in Covington, Newport, and other contiguous Kentucky territory to Cincinnati, Ohio. In the issue of July 30, 1926, there was published a communication from Covington, Ky., prepared by a correspondent who subscribed himself as "A Kentucky Observer," and who in reality was the employed reporter for the paper in the city of Covington. The article so published and circulated was in these words:

"A Protest. To the Editor of The Commercial Tribune: Year after year with the same regularity as the income tax come stories about the tangled financial embarrassments of the City of Covington. Each story means that the taxpayer will have to dig down deeper in his jeans and meet the deficit. But this becomes monotonous and irksome. Probably a more skillful handling of the city's reins and a careful wielding of the pruning knife in weeding out `deadheads' holding soft political jobs in the city's employ might remedy conditions.

"While they are only small fish in a large pond, two sophisticated individuals who ride shiny red motorcycles with Napoleonic mien and seem self-impressed with their importance are glaring examples of uselessness from the standpoint of public beneficiency in the eyes of at least one struggling human. They seem to have a strangely distorted idea of duty. Almost any evening, when the atmospheric conditions are such that they feel assured their classic features will not be marred, they can be found parked at the curb or along the roadside chatting earnestly with believing maidens. What information they possibly can obtain from these mere children about law violation must be left to the imagination. Covington should start housecleaning with the motorcycle cops and work upward to unqualified men holding bigger positions."

At that time appellee and plaintiff below, Harry Haines, and another, were the only employed and acting motorcycle policemen for the city of Covington, and rightfully conceiving that the publication referred to him, plaintiff filed this ordinary action in the Kenton circuit court against defendant to recover damages for what he alleged was a libelous publication defaming him as an officer by charging him with neglect of official duties and as being disqualified to perform them to such an extent that he needed to be weeded out of office with the city's pruning knife, upon the ground that he was a "dead-head" and unqualified to fill the office. A demurrer filed to the petition was properly overruled, and the answer, after denying malice, the falsity of the publication, and the damages, relied on special privilege and the truth of the publication. Appropriate pleadings made the issues, and, under the instructions given by the court, the jury returned a verdict for plaintiff in the sum of $800, upon which judgment was rendered, and defendant's motion for a new trial was overruled, and it prosecuted this appeal.

As we interpret the argument of learned counsel for defendant, their chief criticisms of the trial are: (1) Error of the court in overruling defendant's demurrer to the petition upon the ground that the publication was not libelous per se; (2) error in the admission of evidence offered by plaintiff over defendant's objections and exceptions; (3) refusal of the court to sustain defendant's motion for a peremptory instruction in its favor; and (4) error of the court in assuming and determining, in instruction No. 1 given to the jury, that the complained of publication imputed to plaintiff, as one of the motorcycle policemen in the city of Covington, neglect of official duty by the habitual parking of his motorcycle in the manner and for the purpose stated in the libel, and which criticisms we will dispose of in the order named.

1. It is a fundamental principle in the law of libel and slander that the defamatory matter complained of should be construed as a whole, and that the language employed therein should receive its common and ordinary...