Moore v. Johnson

• Decision Date: 16 March 1912
• Citation: 147 Ky. 584,144 S.W. 765
• Parties: MOORE v. JOHNSON.
• Court: Kentucky Court of Appeals

144 S.W. 765

147 Ky. 584

MOORE v. JOHNSON.

Court of Appeals of Kentucky.

March 16, 1912

Appeal from Circuit Court, Fayette County.

Action by Albert S. Johnson against John Gilbert Moore. From a judgment for defendant, plaintiff appeals. Affirmed.

Forman & Forman and M. Don Forman, for appellant.

Geo. C Webb, for appellee.

CARROLL J.

In this action to recover damages for alleged slander, the plaintiff who is now the appellant, in the first paragraph of his petition against the defendant, now appellee, averred that "the defendant, in the presence and hearing of a certain person other than the plaintiff, falsely and maliciously spoke of and concerning plaintiff these words: 'He took 5 of my big steers from my pasture and left 5 scrub steers in their place. I can't keep any sheep at all, and will have to go out of the sheep business. I had 45 sheep, and have only 26 left, and Gilbert got them. Gilbert sold Stuart Jones a steer that belonged to me, and it was a good one; and he left a scrub steer in his place.' The said defendant thereby meaning, and said third person to whom said words were spoken so understood defendant to mean, that the plaintiff had criminally converted said cattle to his own use without defendant's consent, and had committed the crime of stealing 19 head of sheep." In the second paragraph he averred that "the defendant falsely and maliciously spoke of and concerning plaintiff these words: 'One of my sheep got away, and I sent Lewis after it, but he could not get it; and every time Gilbert moves his sheep through my farm I lose some, and never get them back; and I have lost about 17 sheep this way.' Thereby meaning, and said person to whom defendant then spoke so understood defendant to mean, that plaintiff had committed the crime of stealing 17 head of sheep." In the third paragraph, he averred that "the defendant falsely and maliciously spoke of and concerning the plaintiff these words: 'I will give a libel if ever I had anything to get on your farm and got it back; I have lost 20 sheep this way.' Plaintiff says that defendant did thereby mean, and said person to whom defendant so spoke understood defendant to mean, that plaintiff had committed the crime of stealing 20 head of sheep." In an amended petition, the plaintiff amended the first paragraph of his petition, and averred that "the defendant falsely and maliciously spoke of and concerning plaintiff these words: 'Gilbert Moore has been stealing my stock ever since he has been down here. He has no fencing, and my fence is a good one; so they always get over Moore's fence, and when he comes to get them out he drives off some of mine every time.' The defendant thereby meaning, and the person to whom said words were spoken so understood defendant to mean, that the plaintiff had committed the crime of grand larceny."

The rulings of the court were, in substance, that the plaintiff stated a cause of action in his amended petition, upon which there was a trial and verdict for defendant, but did not state a cause of action in either of the counts of his original petition; and we will treat the action of the lower court as in effect sustaining a general demurrer to the petition.

Counsel for appellee insists that the lower court was correct in holding that a cause of action was not stated in either of the three paragraphs set out in the petition, as the language charged did not impute, in its natural and ordinary meaning, the commission of any crime or offense involving moral turpitude, and the petition did not aver any special damage that Moore had sustained by reason of the publication of the words. On the other hand, it is argued by counsel for appellant that, although no claim of special damage was set out, the language charged imported, according to its reasonable meaning, the commission of the crime of larceny, and was made actionable by the averments of the petition that in speaking the words "defendant did thereby mean, and said person to whom said defendant spoke understood defendant to mean, that plaintiff had committed the crime of stealing, or the crime of grand larceny."

Language is only actionable per se when it "clearly and unequivocally imports that the person accused is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment." McNamara v. Shannon, 8 Bush, 557; Tharp v. Nolan, 119 Ky. 870, 84 S.W. 1168, 27 Ky. Law Rep. 326; Wooten v. Martin, 140 Ky. 781, 131 S.W. 783. This being the test to which language relied on as being actionable per se must be subjected, we think it is obvious that the words set out in the petition are not actionable per se, as they do not, standing alone, in their natural and ordinary meaning, or in the sense in which the words used are commonly and generally understood, clearly and unequivocally import the commission of a crime involving moral turpitude. Clay v. Barkley, Sneed, 67; Caldwell v. Abbey, Hardin, 529; Watson v. Hampton, 2 Bibb, 319; Mills v. Taylor, 3 Bibb, 469; Martin v. Melton, 4 Bibb, 99; Brown v. Piner, 6 Bush. 518; McCauley v. Elrod, 27 S.W. 867, 16 Ky. Law Rep. 291; Craig v. Pyles, 101 Ky. 593, 39 S.W. 33, 18 Ky. Law Rep. 1043; Tharp v. Nolan, 119 Ky. 870, 84 S.W. 1168, 27 Ky. Law Rep. 326; Feast v. Auer, 90 S.W. 564, 28 Ky. Law Rep. 794, 4 L. R. A. (N. S.) 560; Curtis v. Iseman, 137 Ky. 796, 127 S.W. 150; Wooten v. Martin, 140 Ky. 781, 131 S.W. 783; Williams v. Riddle, 145 Ky. 459, 140 S.W. 661; Renaker v. Gregg, 147 Ky. 368, 144 S.W. 89. It follows, therefore, that if the petition stated a good cause of action it must be due entirely to the innuendo contained in the averment that in speaking the words Johnson intended to accuse Moore of the crime of larceny, and was so understood by those who heard him; and to a consideration of this phase of the case we will address ourselves.

The first question that naturally arises is: Can the plaintiff in an action for slander, when the words are not in themselves actionable, and there is no claim for special damages, and no averment of extrinsic matter by way of inducement, convert by innuendo nonactionable words into actionable words by merely averring that the defendant, by the use of the language charged, imputed to plaintiff the commission of a crime, and the persons in whose presence and hearing the words were spoken so understood? Many words in their ordinary usage have an innocent as well as a guilty meaning; and it not infrequently happens that this class of words, when spoken, are intended to have an innocent meaning, and are so understood, and, again, are intended to have a guilty meaning and are so understood. But, when special damages are not sought, and no inducement is pleaded, words that, in their usual and ordinary meaning as commonly understood, do not clearly and unequivocally import the commission of a punishable crime involving moral turpitude cannot by an innuendo be made the basis of an action for slander by the averment that the person speaking them intended to charge the commission of a crime, and the persons who heard them spoken so understood. It is only words that, in their ordinary and usual meaning and as commonly understood, clearly impute the commission of a crime involving moral turpitude that can be made actionable by averments that the speaker intended to use them in their criminal sense, and they were so understood by those who heard them. Of course, when the words laid import on their face a direct and unequivocal charge of crime, an innuendo to point the meaning of the words is not needed, as the words carry with them their own unmistakable meaning. Newell on Libel and Slander, page 619. As, if A. said of B., "He stole my horse," or "He burned my barn." Hume v. Arrasmith, 1 Bibb, 165, 4 Am. Dec. 626; Barr v. Gaines, 3 Dana, 258. But, when the criminal charge is not direct and unequivocal, and no words of fixed criminal meaning are used, if the words in...