Louisville Press Co. v. Tennelly

• Decision Date: 19 January 1899
• Citation: 105 Ky. 365
• Parties: Louisville Press Co. v. Tennelly.
• Court: Kentucky Court of Appeals

105 Ky. 365

Louisville Press Co. v. Tennelly.

Court of Appeals of Kentucky.

January 19, 1899.

APPEAL FROM DAVIESS CIRCUIT COURT.

SWEENEY, ELLIS & SWEENEY FOR APPELLANT. (E. T. FRANKS AND H. R. PHILLIPS OF COUNSEL.)

MARTIN YEWELL AND REUBEN A. MILLER FOR THE APPELLEE.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

This was an action for libel, brought against appellant, who was the publisher of a newspaper, and published in its said paper the following: "FOUND AT LAST. The search for the meanest man on earth has been busily prosecuted for years, but I claim the proud distinction of having located him. He lives in Owensboro, but, strange to say, his fame has heretofore been confined to that town and immediate vicinity. He is an undertaker in the Daviess county capital, but, in addition to his undertaking establishment, he conducts a note-shaving business. In this latter respect he is known as the man who can collect any sort of a note, and also known as a business man who is inexorable in observing the cash-basis plan. Something over a year ago a poor man brought a dead daughter to the undertaking establishment, to have the body embalmed; intending to have the funeral the next day. The morrow arrived, but the bereaved father had no money, and the flint-hearted undertaker refused to give up the body, unless the expense of embalming was paid. The father went away, and has never been heard of since. In the meantime the undertaker has kept the body of the child in a back room, and uses it as an advertisement to demonstrate the superiority of his embalming fluid." This action was instituted in the Daviess circuit court, and the appellant was summoned in Jefferson county, which it appears was the county of appellant's residence, and its place of business, where it issued and printed the aforesaid newspaper. A trial resulted in a verdict and judgment in favor of the appellee for $500, and, appellant's motion for a new trial having been overruled, it has appealed to this court.

A reversal is asked on several grounds, but the principal ground relied on for reversal seems to be error of the court in overruling appellant's demurrer to the jurisdiction of the court. In other words it is insisted for appellant that the circuit court of Daviess county did not have jurisdiction of the appellant; hence the demurrer to the jurisdiction, it is argued, should have been sustained. The correctness of the judgment of the circuit court depends upon the construction of section 74 of the Code of Practice. It will be seen that the Code of Practice, from section 62 to section 80, specifies or provides in what county the various kinds of actions shall be brought. Section 74 of the Code reads as follows: "Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done." We are not aware that this section has ever been specially called in question, or construed by this court; but it seems that the bench and the bar have generally construed or understood the section to mean that the court of any county in which the paper containing the libelous article was circulated had jurisdiction to hear and determine an action for damages, — in other words, that the plaintiff was entitled to sue in any county in which the paper containing the libelous article was circulated, — and we have not been referred to any authority in conflict with such a construction of the Code supra. It may be true that the cause of action accrued to the plaintiff in Jefferson county so soon as the Commercial was printed, and placed in the mails in Jefferson county, but that fact does not necessarily preclude the plaintiff from maintaining his action in any county in which the injury to him was inflicted. It seems to us that the true construction and meaning of section 74 is that the plaintiff may institute his action in the county of defendant's residence, or in any county where he is injured by the publication of the libel. It will be seen from an examination of the sections preceding section 74 that there is no provision as to the venue of an action for an injury to the character of the plaintiff. It therefore follows that section 74 fixes the county or counties in which an action for the injury to the character of the plaintiff may be brought; and it seems clear to us that the action may be brought, at the option of the plaintiff, in the county of defendant's residence, or in any county in which the injury to his character has been inflicted. It results from the foregoing that the court properly overruled the special demurrer of the defendant to the jurisdiction of the Daviess Circuit Court.

It is alleged in the petition that the publication was meant to apply to, and did refer to, the plaintiff. It is provided in section 123 of the Code that "in an action for libel or slander it is not necessary to state any extrinsic facts for the purpose of showing the application to the plaintiff of the alleged defamatory matter." It follows, therefore, that the general demurrer was properly overruled.

Complaint is made by the appellant in respect to the orders and rulings of the court on the various motions in regard to striking out portions of the pleadings, and as to the specifications required; but we are of the opinion that no error occurred in respect thereto prejudicial to the substantial rights of the appellant.

Numerous exceptions and objections are urged against the admission and rejection of evidence on behalf of the appellant, as well as appellee, which objections and exceptions are too numerous to mention; but we have carefully considered the same, and are of the opinion that no error prejudicial to the substantial rights of the appellant was committed in respect either to the admission or rejection of testimony.

Appellant insists that the court erred in giving the various instructions given, and also erred in refusing the instructions offered by appellant. The instructions given by the court are as follows: "(1) The court instructs the jury that they should find for the plaintiff, unless they believe from the evidence that all of the charges contained in the publication complained of are, in fact or in substance, proven to be true, as published. (2) If the jury find for the plaintiff,...