Curtis v. Iseman

• Decision Date: 15 April 1910
• Citation: 127 S.W. 150,137 Ky. 796
• Parties: CURTIS v. ISEMAN.
• Court: Kentucky Court of Appeals

127 S.W. 150

137 Ky. 796

CURTIS v. ISEMAN.

Court of Appeals of Kentucky.

April 15, 1910

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Lee Curtis against Mike Iseman. Judgment for defendant and plaintiff appeals. Affirmed.

W. A Berry, Wheeler, Hughes & Berry, and W. A. Middleton, for appellant.

Campbell & Campbell, for appellee.

SETTLE J.

In this action it was, in substance, averred in the petition that appellee in the presence and hearing of appellant and others falsely and maliciously spoke of and concerning appellant the following alleged slanderous words: "You damned son of a bitch! I'll learn you how to steal a buggy whip." And the further words: "The damned scoundrel was trying to steal from me, and did steal from me, and I am the man that whipped him." The words first mentioned were set out in paragraph 1 of the petition, and those last mentioned in paragraph 2 thereof; it being charged in each paragraph that the words alleged in each were false, and that appellee by the speaking thereof falsely and maliciously intended to charge, and did charge, that appellant was guilty of the crime of larceny. After filing a general demurrer to the petition and entering a motion to strike out certain parts thereof, both of which were overruled by the trial court appellee filed answer, in which he admitted the speaking of the words set out in the first paragraph of the petition, and also that he did say of appellant, as charged in the second paragraph, "The damned scoundrel was trying to steal from me," and, "I am the man that whipped him," but denied that he spoke of and concerning him the words, "and did steal from me," and likewise denied that the words admittedly used were false, that they were maliciously spoken by appellee, or that he intended thereby to charge, or did charge, that appellant was guilty of the crime of larceny. In addition to the admissions and denials mentioned, the answer set forth the circumstances under which the words admitted were spoken; it being therein alleged, in substance, that appellant went to appellee's livery stable to get a wagon and pair of horses which he had there, and upon starting away with them took one of appellee's buggy whips, that appellee informed him he was carrying away his whip, which appellant denied, and claimed the whip as his own property, whereupon they had a fight about the whip, which appellee took from him, and that during the difficulty, and with respect to appellant's wrongful taking of the whip, appellee used of and concerning him the words admitted in the answer. The court, on appellant's motion, struck from the answer certain immaterial parts thereof, and what was left of the answer was traversed by reply. Upon the issues presented by the pleadings, the parties went into trial; but, the court having ruled that the burden of proof was upon appellant, he excepted to the ruling and refused to introduce any evidence, whereupon the court peremptorily instructed the jury to find for appellee, which they at once did, and, following the return of the verdict, judgment was entered dismissing the action at appellant's cost. From that judgment and the refusal of the court to grant him a new trial, the latter has appealed.

We do not think that the trial court erred in ruling that the burden of proof was upon appellant. The words, "You damned son of a bitch! I'll learn you how to steal a buggy whip," contained in the first paragraph of the petition, and which the answer admits were spoken to appellant by appellee, are not actionable per se, for, though vulgar and insulting, even if jestingly used, they do...