Monroe v. Davis

• Decision Date: 19 October 1904
• Citation: Monroe v. Davis, 118 Ky. 806, 82 S.W. 450 (Ky. Ct. App. 1904)
• Parties: MONROE v. DAVIS.
• Court: Kentucky Court of Appeals

82 S.W. 450

118 Ky. 806

MONROE v. DAVIS.

Court of Appeals of Kentucky.

October 19, 1904

Appeal from Circuit Court, Edmonson County.

"To be officially reported."

Action by W. S. Davis against W. T. Monroe.From a judgment in favor of plaintiff, defendant appeals.Reversed.

J. S Wortham, for appellant.

PAYNTER J.

The estate of W. O. Doyel, deceased, of which his widow, Mary E Doyel, was administratrix, was indebted to the appellant.The appellee was the surety of Mary E. Doyel on her bond as administratrix.The decedent seems to have been a merchant and at his death had some merchandise.The administratrix failed to pay the appellant's debt, and he instituted an action against her and her surety, W. S. Davis, to recover it.The plaintiff sought to recover upon the idea that there were assets in the hands of the personal representative, and that one of them was a liability of the appellee to the estate.To show that liability the plaintiff's petition contained an averment as follows: "Plaintiff says that the defendant, William Davis, carried away and converted to his own use a lot of the goods and merchandise from the store, which was a part of the estate left by W. O. Doyel and without paying anything for them, or reimbursing the estate in any way; and plaintiff says that said defendantWilliam Davis, is liable for the payment of his debt in so much as the goods carried away by him were worth."This action was instituted by the appellee, Davis, against the appellant, in which it was averred that the words thus used were false and slanderous, because they import that he was guilty of larceny by feloniously taking goods from the store left by the decedent.It was averred that the words were not germane or pertinent to the matters at issue in the action in which they were used, and that they were used for the malicious purpose of slandering the plaintiff, and to injure his good name and reputation.There was no averment in the petition that the appellant instituted the proceeding against the administratrix and her surety for the purpose of slandering the plaintiff, or as a cover to his malice, or that the proceeding was not instituted in good faith to establish his rights.In our opinion, the words did not import a charge that the appellee stole the goods from the storehouse, or that he even took them without the consent of the administratrix.The words used do not import more than that he converted some goods to his own use that were in the store.The appellant sought to make the defendants liable for the value...