Miller v. Noell
| Decision Date | 07 February 1922 |
| Citation | 193 Ky. 659,237 S.W. 373 |
| Parties | MILLER v. NOELL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Boone County.
Action by J. L. Noell against G. L. Miller. Judgment for plaintiff and defendant appeals. Affirmed.
O. M Rogers, of Covington, for appellant.
D. E Castleman, of Erlanger, for appellee.
In this action for slander the appellee, J. L. Noell, recovered of the appellant, G. L. Miller, in the court below a verdict and judgment for $500 in damages, complaining of which, and of the refusal of that court to grant him a new trial, the latter has appealed.
The petition contains two paragraphs. In the first it was alleged that the appellant, in a conversation with one B. B. Hume in the city of Covington, Kenton county, to the latter and in the hearing of others spoke of and concerning the appellee the following slanderous words:
"Old Joe Lee Noell stole and carried away everything Lizzie Miller had; he broke her up."
In the second paragraph it was alleged that the same slanderous words (again setting them out) later were spoken in Boone county by the appellant of and concerning the appellee to Lizzie Miller in the hearing of others. It was also alleged in each paragraph that the alleged slanderous words were false and were falsely and maliciously spoken by the appellant, who meant thereby to charge and did charge the appellee with the crime of stealing, to the great injury of his feelings and reputation. Each paragraph laid the appellee's damages, by reason of the alleged slander, at $10,000, and each contained a prayer for the recovery of that amount. There were therefore two causes of action of like character properly joined in the one petition, upon either or both of which, if supported by sufficient evidence, the appellee was entitled to recover damages. Lizzie Miller is the widow of H. E. Miller and daughter-in-law of the appellant, G. L. Miller. She has two sone who are grandsons of G. L. Miller, and one of whom, C. E. Miller, testified as a witness for appellee on the trial of this case. It appears from the bill of evidence that for 10 or more years prior to the institution of this action she had been conducting a grocery store at Big Bone, in Boone county, and that frequently during those years, often a week or more at a time, when rushed by trade that required an assistant to help her in the store, she would employ the appellee as such assistant; and this relationship of employer and employee seems to have been adopted by appellant as a basis for the charge contained in the alleged slanderous words imputed to him by the petition.
The appellant made no attempt, either by plea or proof of their truth, to justify his speaking of the alleged slanderous words. His answer merely traversed the averments of the petition as amended; therefore the paramount issue of fact made by the pleadings and necessary to be determined by the jury was as to whether the appellant on the two occasions, or either of them, mentioned in the petition, spoke the words therein attributed to him. As the words complained of, if spoken by him to another or others, were slanderous per se, malice on his part would, as a matter of law, be presumed from the mere speaking of them; evidence of the circumstances attending the speaking being admissible to show the motive or animus of the appellant, and also the injury and resulting damages thereby caused the appellee.
The appellant insists that the judgment of the trial court should be reversed because of error contained, as claimed, in what, in the grounds for a new trial and also in the brief of his counsel, is called "two instructions" of the court, but which we find from the bill of evidence were only two admonitions from the court to the jury, given during the taking of evidence by which the latter were elaborately advised that certain parts of the testimony of each of two witnesses for the appellee should be considered by them only as bearing on the question whether the slanderous words, if spoken by the appellant, were spoken with intentional malice. In thus admonishing the jury the court evidently had in mind the distinction between express malice and that which might be implied from a heedless speaking of false yet slanderous words; the distinction being one important to be considered by the jury in aggravation or mitigation of the plaintiff's damages. The admonitions in question were stenographically taken by the official reporter of the court, as delivered by the court, and both appear in the bill of evidence contained in the record. As confirmatory of our conclusion that it is the admonitions referred to, and not the instructions of the trial court, of which the appellant complains, we find in the brief of his counsel the following approval of the trial court's instructions:
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...was correct as far as it went. Civil Code, sec. 317, subsec. 5; Traders' Deposit Bank v. Henry, 105 Ky. 707, 49 S.W. 536; Miller v. Noell, 193 Ky. 659, 237 S.W. 373; Louisville R. Co. v. Birdwell, 189 Ky. 424, 224 S.W. 1065; Ohio Valley Elec. R. Co. v. Webb, 202 Ky. 341, 259 S.W. 697; Ray v......
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Kunz v. Nelson
...... reduce the instructions to writing. Likewise Hardin . v. Helton , 50 Ind. 319, at page 324;. Strattan v. Paul , 10 Iowa 139;. Miller v. Noell , 193 Ky. 659, at page 662,. 237 S.W. 373; Fry v. Shehee , 55 Ga. 208, at. page 215; Hardy v. Turney , 9 Ohio St. 400;. ......
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Hunter v. State, 1--976A168
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