Kentucky Journal Publishing Co. v. Gaines

• Decision Date: 06 May 1908
• Citation: 139 Ky. 747
• Parties: Kentucky Journal Publishing Co. v. Gaines.
• Court: Kentucky Court of Appeals

139 Ky. 747

Kentucky Journal Publishing Co. v. Gaines.

Court of Appeals of Kentucky.

May 6, 1908.

Appeal from Anderson Circuit Court.

Judgment for plaintiff and defendant appeals. — Reversed.

LEWIS M'QUOWN and JAS. ANDREW SCOTT for appellant.

JOHN W. RAY and GEO. A. WILLIAMS for appellee.

OPINION OF THE COURT BY JUDGE BARKER — Reversing.

The appellee, Noel Gaines, instituted this action in the Anderson circuit court against appellant, Kentucky Journal Publishing Company, to recover damages for an alleged libelous publication concerning him, which, in part, is as follows:

"Gaines confesses he is a thief. Endeavor to bolster up defense of his forged letter sinks him deeper in mire. Produces another forgery while you wait.

"Under the headlines: `Makes Manly Statement and Shows Honorable Possession of the Letter,' a local afternoon paper yesterday printed Noel Gaines' version of how he secured the letter which General Percy Haly has pronounced a base forgery, and taking his own statement it shows acts which are anything but honorable, and which are convincing that the man who would stoop so low as to secure a letter or paper in the way in which he acknowledges in his statement could be guilty of what the former Adjutant General charges.

"In the same publication in this afternoon paper, Gaines prints another letter which he says General Haly gave him, and which General Haly declares to be a second forgery. This second letter, which is printed for the purpose of bolstering up the crusader in his false charges, is one of recommendation with a date line at its head giving a time at which the alleged writer can prove, if necessary, by a good many local men of standing, that he was hardly on speaking terms with Gaines because of what he considered attempts at blackmail to secure the appointment as Adjutant General of the State."

The defendant, before answering, made a motion that the regular judge vacate the bench and allow a special judge to preside, and, in support of this motion, filed the following affidavit:

"The affiant, the Kentucky Journal Publishing Company, by W. P. Walton, president of said company, says that the judge of this court can not properly preside in this action because he will not afford said company a fair and impartial tral, as he verily believes, for the following reasons, to-wit:

"1st. The said judge of this court is politically antagonistic to this defendant, and has political bias and enmity towards said company, and because —

"2d. The judge of this court has openly stated his belief in the genuineness of the signature of Percy Haly to the letter purporting to have been written by Haly to Judge Lassing, and referred to in the alleged libel herein.

"3d. Because the judge of this court was in frequent communication and conference with the plaintiff, Noel Gaines, concerning the publication of said letter in the Crusader, a paper published by said plaintiff, out of which the alleged libelous publication herein grew.

"4th. This defendant says that the alleged libelous publication, and this suit, grew out of and were the direct result of the political campaign which has just ended between Gov. J. C. W. Beckham, upon the one side, and Senator J. B. McCreary, upon the other, for the United States Senatorship, and that said campaign was waged with great bitterness upon both sides, and to such an extent that the judge of this court felt called upon to go, and did go, on the stump and make speeches for said McCreary and against said Beckham, in which he attacked said Beckham personally, together with his administration of the State's affairs, and that in said campaign this defendant was the friend and partisan of said Beckham and his administration, and it, therefore, says that the judge of this court by his action as aforesaid, has become so embittered against this defendant that in fairness to himself he ought not to preside in this case, and can not do so in such an impartial manner as to afford this defendant a fair and impartial trial of this cause."

The court overruled the motion that he should vacate the bench, and presided at the trial, which resulted in a verdict in favor of the plaintiff for the sum of two thousand dollars.

The only ground relied upon for reversal of the judgment based upon the verdict of the jury is the refusal of the regular judge to vacate the bench.

So much of section 968, of the Kentucky Statutes, as is applicable to the subject in hand, is as follows:

"When, from any cause, the judge of the circuit court fails to attend, or being in attendance can not properly preside in an action, proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may elect one of the attorneys of the court to preside on the trial or hear the application, or hold the court for the occasion. * * *"

The affidavit filed by the defendant in the court below seems to us to fully measure up to the requirements of German Insurance Company v. Landram, 88 Ky., 433, which is the leading case upon the principle that, under the statute, it is necessary to state in the affidavit the facts from which the deduction is drawn, that the trial judge will not afford the litigant a fair and impartial trial. The affidavit not only states that the judge had a political bias and enmity toward the defendant, but that he had openly asserted his belief in the genuineness of the signature of Percy Haly to the letter, which was the crucial question in the libel suit; that the judge had been in frequent communication with the plaintiff concerning the publication of the letter in the Crusader, a newspaper under the control and management of the plaintiff. It further shows that the alleged libelous publication, and the suit concerning it, grew out of and was the direct result of a bitter political campaign which had just been waged between Governor Beckham, on the one side, and Senator McCreary on the other, for the office of United States Senator for Kentucky. We are of opinion that the statements in this affidavit thoroughly disqualified the regular judge from presiding in the trial of the case. We do not mean to say that, in our opinion, these statements are true; for their truth can not be inquired into in this action. All that the statute, as construed by this court in German Insurance Company v. Landram, supra, requires is that the affidavit should allege such facts, which, if true, show that the trial judge will not, or may not afford the litigant a fair and impartial trial of his case. Manifestly, if the trial judge had openly expressed an opinion of the genuineness of the letter, which was the real question in the litigation, and if he had been, as charged, in communication with the plaintiff concerning its publication in a newspaper, there can be no doubt that the judicial mind was not in that state of impartial equipoise between the litigants which is required to afford a fair and impartial trial.

It is no answer to say that the record, as a matter of fact, does not show any subsequently occurring error prejudicial to the interest of the party complaining. This may be because the litigant has chosen to rest his right to a reversal alone upon the error of the court in refusing to vacate the bench; or because counsel for the litigant may not have been as watchful over the interest of his client as he should have been; or that the prejudicial acts upon the part of the court were not detected by the vigilance of counsel. In answer to the same proposition — that the record showed no ground for complaint of the judge's rulings — this court, in the case of Massie v. Commonwealth, 93 Ky., 588, said:

"But that is not the question; for the accused has the right to be tried by a judge that is fair and impartial and when he has good reason to believe, supported by facts, that he will not afford him such trial, he should not be compelled to take chances of a trial before that judge in order that the truth of the matter may be developed, which may never be developed, because there are many...