Graziani v. Ernst

• Decision Date: 28 April 1916
• Citation: 169 Ky. 751,185 S.W. 99
• Parties: GRAZIANI v. ERNST ET AL.
• Court: Kentucky Court of Appeals

185 S.W. 99

169 Ky. 751

GRAZIANI v. ERNST ET AL.

Court of Appeals of Kentucky.

April 28, 1916

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by B. F. Graziani against James C. Ernst and others. From a judgment dismissing his amended petition on demurrer plaintiff appeals. Reversed and remanded.

Horace W. Root, of Newport, and G. F. Boughner, of Covington, for appellant.

Robert C. Simmons, John B. O'Neal, and Lewis F. Brown, all of Covington, for appellees.

HURT J.

On the 21st day of October, 1911, the appellant, B. F. Graziani filed in the office of the clerk of the Kenton circuit court a petition in ordinary against the appellees James C. Ernst South Covington & Cincinnati Street Railway Company, Cincinnati, Newport & Covington Railway Company, Cincinnati, Newport & Covington Light & Traction Company, the Columbia Gas & Electric Company, Louis F. Brown, and Richard Salters. It cannot be determined from the averments in this pleading exactly what was attempted to be done by it, as it did not state a cause of action of any kind, although it is nearer a suit for damages for a malicious prosecution than anything else. The pleading was very lengthy, and it is unnecessary to state all the things which were alleged in it, as much or the greater part of it consisted in the statement of matters which were unnecessary to the support of any kind of an action, and a great many matters, the proof of which would constitute evidence in an action in behalf of appellant against the appellees if a suit should be on trial by appellant against the appellees for slander, libel, malicious prosecution, or other action in which it would be useful or necessary to prove malice on their part against him. The petition, in substance, first alleged the number of years in which appellant had been practicing the profession of law in the courts of Kenton county and the city of Covington; that he had a lucrative practice and enjoyed the confidence and esteem of the public before the cause of complaint occurred, which is set out in the petition. The names of the appellees were then stated, and the fact that several of them were corporations, and the places of their organization; that James C. Ernst was their president, and Louis F. Brown their agent, and Richard Salters was a policeman. It was then averred that the appellees, about April 25, 1911, and for many weeks thereafter, wrongfully, wickedly, maliciously, and corruptly, and without probable cause, conspired to accuse appellant of subornation of perjury, and for the purpose of securing Rosa Lee Blackburn to charge and accuse him of such offense; that the appellants spent large sums of money in procuring detectives to follow him and to surround his office and home, and to follow him from place to place for the purpose of intimidating him and driving his business from him and to degrade and humiliate him; that they wrongfully and maliciously, and without probable cause, conspired with each other to procure an indictment against him, in which he should be accused of subornation of perjury; that while a grand jury was in session the appellees, without probable cause, appeared before the grand jury and secured others to go before the grand jury for the purpose of trying to secure an indictment against him for subornation of perjury; that by wrongful expenditures of money and other inducements, various newspapers made publications against him for the purpose of injuring him in his business and to humiliate and degrade him before the public; that by reason of these things he had been caused mental and physical pain and suffering, loss in his reputation and business, and humiliation; that he had conducted many suits against the appellee corporations for damages for personal injuries, and that because of their hatred toward him, they wrongfully and maliciously attempted to secure an indictment against him and to procure Rosa Lee Blackburn to accuse him of subornation of perjury before the grand jury; that each of the appellees, their officers and agents had accused him of subornation of perjury, and thereby he had been humiliated, injured, and damaged in the sum of $100,000, which he prayed to recover of appellees. The above allegations are as definite as the petition stated any cause of action.

The appellees made a motion to strike out certain parts of the petition, because the matters stated in such portions were immaterial and irrelevant. The court sustained the motion very properly. While there are some allegations in the petition which would indicate that an attempt was being made to state a cause of action in favor of appellant against appellees for maliciously, without probable cause, prosecuting him for the crime of subornation of perjury, it fails to state facts sufficient to support such a cause of action.

To set forth a cause of action for malicious prosecution for a crime or misdemeanor it is necessary to allege: (1) That the defendant caused a proceeding, judicial in its character, to be instituted against the complainant, in which he is charged with the guilt of a crime or misdemeanor; (2) that the proceeding has terminated favorably to the complainant, either by a trial or a nolle prosequi or if adversely to plaintiff, it was governed by the corruption or fraud of defendant; (3) that the defendant was actuated by malice in instituting or conducting the prosecution; (4) that the proceeding was instituted without probable cause for belief in the guilt of the complainant of such crime or misdemeanor.

Two essentials to a cause of action for malicious prosecution are absent from the petition: The institution by appellees of a proceeding by warrant or indictment against appellant for subornation of perjury, and the fact that such proceeding had terminated favorably to appellant by a trial or a dismissal of the proceeding by the officer authorized to do so. Chelf v. Penn, 2 Metc. 463; Spring & Stepp v. Besore, 12 B. Mon. 551; Wood v. Laycock, 3 Metc. 192; Proctor Coal Co. v. Moses, 40 S.W. 681, 19 Ky. Law Rep. 419; Yocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583; Miller v. Jones, 7 Ky. Law Rep. 224.

Neither will the averments of the petition support a cause of action for libel of appellant by appellees. An action for libel must show a malicious publication expressed in printing or writing, or by signs or pictures, which tend to expose one to public hatred, contempt, or ridicule. There is no attempt in the petition to charge any publication of any writing or the existence of any writing concerning the appellant, which is libelous or otherwise. No reference is made in the petition of appellees procuring Rosa Lee Blackburn to make an affidavit or that appellees published it, or to the effect that she ever made an affidavit concerning the appellant, but the allegation is that they tried to procure her to accuse appellant of subornation of perjury before the grand jury, which was an unnecessary allegation, and under the averments of the petition such fact could be evidence only of malice of appellees.

On October 27, 1913, the appellees filed an answer, in which they traversed simply the averments of the petition. Thereafter, on June 1, 1915, the appellant filed, without objection, an amended petition. The reasons stated in the amendment for filing it was to make the cause of action set out in the original petition more definite and certain. The amendment seems to state facts sufficient to constitute a cause of action for libel in favor of appellant against appellees. It is in substance alleged therein that on or about April 24, 1911, the appellees entered into a conspiracy for the purpose and wrongfully and maliciously induced Rosa Lee Blackburn to subscribe and swear to an affidavit, the contents of which were false, and that appellees then maliciously published this affidavit. The affidavit is set out in the petition in the exact words of the alleged affidavit. The...