Massengale v. Lester
| Decision Date | 11 February 1966 |
| Citation | 403 S.W.2d 701 |
| Parties | Jack C. MASSENGALE, Appellant, v. Charles Bruce LESTER, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
E. Gaines Davis, Jr., Frankfort, Jack M. Longshore, Miamiville, Ohio, for appellant.
Daniel W. Davies, Newport, for appellee.
In January of 1963 the appellant, Jack C. Massengale, filed in the U. S. District Court for the Southern District of Ohio a suit in which Massengale was the plaintiff and Charles Bruce Lester, the appellee, was named as the defendant. According to Massengale's testimony in the case now before us, the designation of Charles Bruce Lester was a mistake, as the intended defendant was his father, Charles E. Lester. Before the error could be rectified, a Cincinnati newspaper published a story recounting the substance of the federal court complaint. Charles Bruce Lester then brought the present action in the Campbell Circuit Court against Massengale for libel and recovered $500 compensatory and $500 punitive damages at the hands of a jury. Massengale's motion for an appeal has been sustained. KRS 21.060, 21.080; RCA 1.180.
Charles E. Lester and Charles Bruce Lester are attorneys associated in the practice of law at the same address in Newport, Kentukcy. In 1956 Charles E. Lester defended Massengale against several indictments in Ohio, and some time thereafter a disagreement arose between them concerning fees and expenses. See Massengale v. Lester Ky., 403 S.W.2d 697 (decided today), for the background. In his federal court suit Massengale alleged that he had given the defendant a $1,500 note and had paid him, through mistake, more than that amount, despite which the defendant refused to surrender the note and refund the excess; that the defendant had fraudulently obtained from him $1,750 for printing expenses; and that the defendant had fraudulently assigned the $1,500 note and a mortgage securing it to one Burkhart for the purpose of coercing the plaintiff to pay out still more money in order to effect their cancellation.
A publication falsely charging an attorney at law with unprofessional conduct is libelous per se, and unless it is privileged both malice and damage are presumed. Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 283 (1920). However, 'statements in pleadings filed in judicial proceedings, if material, relevant, or pertinent to the issues involved, are absolutely privileged, though it is claimed that they are false and alleged with malice.' Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753, 754 (1925); Restatement of Torts, § 587; 33 Am.Jur. 144 (Libel and Slander, § 149).
Whether Massengale intended to sue Charles Bruce Lester or not, the fact is that he did sue him, and the only instrumentality by which he published any defamatory matter concerning him was the federal court complaint, under the cloak of absolute privilege. Probably because he recognized this legal obstacle, Lester cast his complaint in the present action on the newspaper article rather than the pleading itself, 1 but it seems to us that one whose statements are privileged because made in a judicial proceeding does not lose that privilege simply because they are republished in a newspaper. Otherwise the very purpose of the privilege...
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