Kwass v. Kersey, 10622

• Decision Date: 16 March 1954
• Docket Number: No. 10622,10622
• Court: West Virginia Supreme Court
• Parties: , 47 A.L.R.2d 695 KWASS, v. KERSEY.

Page 237

81 S.E.2d 237

139 W.Va. 497, 47 A.L.R.2d 695

KWASS, v. KERSEY.

No. 10622.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1954.

Decided March 16, 1954.

Syllabus by the Court.

1. In the absence of allegations charging a breach of trust or of contract, a bill in equity does not lie to enjoin the publication of defamatory statements relating to personality and professional conduct.

2. Equity has no jurisdiction when there is a full, complete and adequate remedy at law.

J. W. Maxwell, Beckley, for appellant.

Joseph M. Sanders, Bluefield, for appellee.

LOVINS, Judge.

This is a suit brought by Sidney J. Kwass against J. L. Kersey in the Circuit Court of Mercer County.

Essentially, it is an injunction suit seeking to enjoin the defendant from defaming the plaintiff. There are special prayers touching alleged threats of assault and attempted intimidation by the defendant against the plaintiff, and also concerning the damages allegedly suffered by the plaintiff from the defamatory words allegedly published by the defendant.

Upon the filing of the verified bill of complaint and a motion for a temporary injunction, the court granted a temporary injunction without notice.

The defendant, his agents, servants, employees and representatives were enjoined: (1) from circulating or publishing a certain letter addressed to Walter G. Burton, (2) from circulating or publishing any written or printed matter charging the plaintiff, expressly or impliedly, with fraud, conspiracy, deceit, dishonesty or unethical conduct 'or any other wrong-doing', (3) from orally circulating or publishing charges of fraud, deception, conspiracy, dishonesty, unethical conduct or any other wrong-doing, (4) from sending through the United States mails, or circulating or publishing in any manner whatsoever any written, printed or mimeographed letters, papers or documents, or from verbally making to any person or persons whatsoever, charges of unethical conduct, fraud, dishonesty, corruption, deception, or any other wrong-doing, (5) from making public or circulating any libelous or slanderous statements of any kind, character or description concerning the plaintiff, and (6) from interfering with, molesting, threatening, assaulting or attempting to intimidate the plaintiff.

After the award of a temporary injunction, the trial court entered a decree requiring the defendant to give a list of names and addresses of persons to whom copies of a letter, signed by the defendant and addressed to Walter G. Burton, was delivered or exhibited.

This suit grew out of the domestic troubles of the defendant's daughter, Josephine Kersey Campbell, with her husband, Alexander D. Campbell, who has signed an agreement concerning their property rights and marital difficulties.

The plaintiff drafted an agreement supplemental to and revising the first agreement, and according to the theory of the defendant, plaintiff induced his daughter, Mrs. Campbell, to sign the same. The defendant seems to think that Mrs. Campbell was deprived of substantial property rights, and the right to have custody of her three infant children.

The plaintiff denies that he represented Mrs. Campbell. The defendant, with equal vigor, asserts that the plaintiff was regarded as Mrs. Campbell's representative. In the course of negotiations, according to the charges made against the plaintiff, he advised Mrs. Campbell to go to Florida for the purpose of obtaining a divorce, and it seems that such effort was unsuccessful.

The instant suit was heard on the amended and supplemental bill of complaint, the demurrer of the defendant, Kersey, to such bill, which was overruled and the sworn answer of the defendant to such bill. The defendant thereupon moved the court to dissolve the injunction, which motion was overruled. This appeal followed.

A short synopsis of the salient facts alleged in the amended and supplemental bill of complaint discloses that the plaintiff is an attorney at law, residing in Bluefield; that he has a good reputation for honesty, integrity and ethical conduct; that he is wholly dependent for a livelihood upon the practice of his profession as an attorney at law; that he is a member of the Bar Association of his county and other organizations connected with the practice of the legal profession.

The plaintiff alleges that he represented Alexander D. Campbell and a corporation with which Campbell was connected for many years, prior to the institution of this suit; that at the request of said Alexander D. Campbell, he prepared a written contract between Campbell and his wife under date of July 1, 1950. By that agreement, Campbell agreed to transfer to his wife all of the furniture, fixtures and household goods then owned by Campbell and located in the family home at Bluefield, West Virginia, and an automobile then owned by Campbell; that Mrs. Campbell should have custody of the three children, subject to 'order of a court of competent jurisdiction and right of visitation by Mr. Campbell'; that Campbell should pay to his wife the sum of $75 per month for the support of each of said children until said children reached the age of 18 years; that he would pay his wife the sum of $125 per month; that Campbell would continue to pay monthly payments on the mortgage overing the family home, amounting to about $13,000, until the mortgage was satisfied; that he would maintain insurance on his life for the protection of his wife and children to the limit of his financial ability.

Plaintiff further alleges that Campbell advised him that Campbell's wife was dissatisfied with the provisions of the agreement; that she was tired of her duties as housekeeper and mother and desired to transfer those duties to her husband; and that it was her wish to leave Bluefield, 'and make a life of her own at a place distant from Bluefield'.

The plaintiff alleges that Campbell advised him that Josephine Kersey Campbell had agreed to the revision of the contract of July 1, 1950, in certain particulars, which revision was accordingly made by the plaintiff.

Under the revised agreement, Mrs. Campbell was to convey the Campbell home in the City of Bluefield to her husband. The Campbell home was worth approximately $16,500 at that time and was encumbered by a mortgage in the sum of $12,750. Campbell, in the revised agreement, was to pay his wife $200 for six months and if she was not gainfully employed, was to continue payment of $200 for a period of one year. Thereafter, the revised agreement provided that Campbell was to pay his wife $125 per month, as long as she lived or until she remarried, and if she remarried, he was to pay her $500 a year, and that he would maintain life insurance on his life for the benefit of his wife and three children.

The plaintiff further alleged that Campbell requested him to prepare a supplemental agreement embodying the terms set forth above. The agreement was prepared and after two consultations, Campbell signed the agreement and informed the plaintiff that Josephine Kersey Campbell and her two brothers had inspected and approved the revised agreement.

On or about the 27th day of December, 1951, Campbell's wife went to the office of the plaintiff signed and acknowledged the supplemental agreement, with full knowledge and appreciation of its terms and conditions.

The plaintiff alleged in his bill that he read the agreement to her and fully discussed the revised agreement with her. Plaintiff alleged that he had good cause to believe from what Mrs. Campbell said to him that the revised agreement was acceptable to her; that at that time he suggested to Mrs. Campbell that she was free to discuss the agreement with other counsel; that if she did select such counsel that he would cause her husband to pay counsel fees involved in such consultations; but that Mrs. Campbell declined to consult another attorney and thereupon signed and acknowledged the revised agreement.

Plaintiff alleges that after the execution of the agreement, Mrs. Campbell and her father, the defendant, became dissatisfied with the revised agreement and without any justification, became very angry with the plaintiff and formulated a scheme to circulate as widely as possible among plaintiff's firends, associates and the public in general, false reports which were in substance that the plaintiff was 'dishonest, unscrupulous, unethical, a 'shyster', a deceiver and betrayer of clients', and that the plaintiff should be disbarred as an attorney.

Plaintiff charges that Mrs. Campbell and the defendant, her father, entered into a conspiracy, having for its purpose the circulation of false reports concerning the plaintiff as a practicing attorney, for the object and purpose of destroying his reputation as a lawyer, and to cause prospective clients to believe that he was dishonest and to prevent him from being employed.

The plaintiff charges that pursuant to such arrangement between the defendant and his daughter, that they did circulate throughout Mercer County false reports, as above noted.

Plaintiff charges that the acts of the defendant and his daughter in the circulation of such reports have done him irreparable damage. Plaintiff also alleges that the defendant sent a letter to the plaintiff containing malicious falsehoods and statements of a scurrilous and defamatory nature. The plaintiff alleges that the defendant has exhibited copies of such letter to various persons and that doubt has been cast on his honesty and integrity; that a letter containing similar accusations, was sent to the Chairman of the Grievance Committee, West Virginia State Bar, Tenth District; that defendant has caused seventy-five copies of the letter addressed to such chairman to be mimeographed; and that in writing the letter and sending it to such chairman, the defendant was actuated by malice.

Plaintiff charges that the defendant has threatened bodily injury to him and also to have him disbarred from...