McGeever v. Kennedy

• Decision Date: 29 September 1897
• Citation: 42 S.W. 114
• Parties: McGEEVER v. KENNEDY.
• Court: Kentucky Court of Appeals

42 S.W. 114

McGEEVER v. KENNEDY.

Court of Appeals of Kentucky.

September 29, 1897

Appeal from district court, Jefferson county.

"To be officially reported."

Action by Thomas Kennedy against Thomas McGeever. Judgment for plaintiff, and defendant appeals. Affirmed.

John W Barr, Jr., and Alexander J. Barret, for appellant.

Samuel A. Lederman, for appellee.

BURNAM J.

This is a suit for slander, in which appellee recovered a judgment below. A reversal is sought upon the grounds that appellee failed on the trial to prove any publication of the slander complained of by competent evidence, and that the motion of appellant for a peremptory instruction should have been sustained. Appellee contends: First, that there is no bill of exceptions in this record of the proceedings in the lower court, and that, in its absence, the only question which this court can consider is the sufficiency of the pleadings to support the verdict; second, that the trial court did not err in overruling appellant's motion for a peremptory instruction on the facts of publication.

As to the bill of exceptions, the record shows that the official stenographer of the court below certifies that the transcript filed by him contains a full and accurate transcript of the shorthand notes of the oral testimony given on the trial of the case, and on page 67 he says that this was all the evidence offered by either party or heard by the court and jury on the trial of the case. This transcript of the stenographer was examined and approved by the presiding judge of the court, who signed his name at the foot thereof, and this order was entered: "The defendant, by counsel tendered to the court a bill of exceptions and transcript of the testimony herein, and the court, having examined approved, and signed same, orders that they be filed and made a part of the record and proceedings herein,"-which was done. No exceptions were taken to the instructions, and it is not important that they should have been copied into the bill of exceptions. It seems to us that the transcript of evidence, as prepared by the stenographer, contains everything that could have been inserted in an ordinary bill of exceptions, as all the evidence is recited in full, and the motions and exceptions made on the trial are fully set out. It was further approved and signed by the trial judge, and fully identified and adopted as a correct transcript of what transpired, and it was noted of record on the order book of the court as a bill of exceptions. The Civil Code of Practice (section 335) provides that no particular form of exceptions or bill of exceptions is required, and the transcript filed with the record is a sufficient compliance with the statute to entitle appellant to avail himself of the exceptions which it shows were taken upon the trial of the case, and may be properly treated, under the facts of this particular case, as a bill of exceptions.

The only question presented for the consideration of this court is, was there any evidence to support the verdict? Publication is an essential element in any action for oral slander. Some third person must hear the language spoken. Whether the third person present at the speaking did or did not hear the language is in every case a question of fact and the burden is on him who alleges & publication to establish that a third person heard the language spoken, and understood it. See Townsh. Sland. & L. p. 141. The presumption is that the court instructed the jury properly upon this point. Appellee testifies: That he went up to the office of the Metropolitan Insurance Company. Tha...