Deitchman v. Bowles
| Decision Date | 19 October 1915 |
| Citation | 166 Ky. 285,179 S.W. 249 |
| Parties | DEITCHMAN v. BOWLES. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.
Action by J. A. Bowles against William Deitchman. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Clem W Huggins, Robert J. Hagan, and L. D. Greene, all of Louisville, for appellant.
Robert L. Page, of Louisville, for appellee.
J. A Bowles sued William Deitchman in the Jefferson circuit court for slander. He recovered a judgment in the sum of $500; and the defendant appeals.
This case is the aftermath of a hotly contested election, in the course of which appellant in a campaign speech made remarks to which appellee took exception. The language which plaintiff complained of was as follows:
The word "rob" does not necessarily carry with it the imputation of crime. Given its technical meaning as used in law, it, of course, imports the commission of a felony; but colloquially it is quite often used when no imputation of crime is intended, and, where used in its colloquial sense, it is not actionable per se.
If a consideration of all the language used at the time the word "rob" was used demonstrates that it was used only in its colloquial sense, it will be held nonactionable per se as a matter of law. Macauley v. Elrod, 27 S.W. 867, 16 Ky. Law Rep. 291. But, in the absence of accompanying language determining the quality of expressions having two interpretations, one actionable, and the other nonactionable, it is for the jury to determine in which sense the language was spoken. Beams v. Beams, 138 Ky. 818, 129 S.W. 298; Welsh v. Eakle, 7 J. J. Marsh. 424; Dedway v. Powell, 4 Bush, 77, 96 Am. Dec. 283; Winstead v. Trice, 5 Ky. Law Rep. 863; 12 Ky. Opinions, 590.
The court instructed the jury that, if they believed from the evidence that on November 3, 1913, in the presence and hearing of some other person, defendant, William Deitchman, falsely and maliciously spoke of and concerning plaintiff, the language above set forth, "thereby meaning that the plaintiff had committed the crime of robbery," the jury should find for plaintiff. Defendant objected to this instruction, and asked the court to give an instruction defining the crime of "robbery" as used in the instructions given. This request the court denied, and of this ruling appellant complains.
The case of Beams v. Beams, supra, is directly in point, and conclusive upon the contention here presented. In that case the word "stole" was complained of. After noting that the word has an actionable and a nonactionable sense, and that the plaintiff could not recover if the word was used colloquially, but could recover if it was used in its actionable sense, that is, "meaning thereby to charge the plaintiff with having committed the crime of larceny," the court held that the trial court should have told the jury what constitutes larceny, and should have instructed them that, unless the words spoken by defendant were intended to charge the plaintiff with the crime of larceny, and would be naturally so understood by the persons who heard them, the verdict should be for the defendant.
In the instant case, as the plaintiff may recover only in the event the word "rob" was used in its actionable sense (no special damages being shown), the court, in order that the jury might intelligently determine whether the language complained of was used and was understood by its hearers in its actionable sense, should have told the jury what is required to constitute the crime of robbery, and that, unless they believed from the evidence that the defendant, in using the language complained of, intended to charge plaintiff with the crime of robbery, as in the instructions defined, or that the language used was reasonably calculated to cause the persons who heard it to so understand it, they should find for the defendant. For this error in the instructions defendant is entitled to a new trial.
2. Appellant also complains that the trial court erred in limiting the number of witnesses permitted to...
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...Id. ("[W]hether or not [a qualified privilege] has been waived is factual."). 63. See Yancey, 786 S.W.2d at 858; Deitchman v. Bowles, 166 Ky. 285, 179 S.W. 249, 249 (1915) ("[I]n the absence of accompanying language determining the quality of expressions having two interpretations, one acti......
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...jury should decide which of the meanings a recipient of the message would attribute to it. 786 S.W.2d at 858 (citing Deitchman v. Bowles , 166 Ky. 285, 179 S.W. 249 (1915) ; Beams v. Beams , 138 Ky. 818, 129 S.W. 298 (1910) ). The Yancey court remanded the case with the instruction that sho......
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