Nicholson v. Merritt

• Decision Date: 21 November 1900
• Citation: 59 S.W. 25,109 Ky. 369
• Parties: NICHOLSON v. MERRITT. [1]
• Court: Kentucky Court of Appeals

59 S.W. 25

109 Ky. 369

NICHOLSON v. MERRITT. ^[1]

Court of Appeals of Kentucky.

November 21, 1900

Appeal from circuit court, Graves county.

"To be officially reported."

Action by Minnie Nicholson against D. R. Merritt for slander. Judgment for defendant, and plaintiff appeals. Reversed.

Park &amp Speight and W. M. Reed, for appellant.

Lee &amp Hester, for appellee.

DU RELLE, J.

The trial of this action for slander, for speaking of and concerning appellant words which imputed a charge of fornication, resulted in a verdict and judgment for defendant (appellee). The words charged, and which, in substance, are admitted by appellee in his testimony to have been spoken by him, viz.: "Has one of Griff Nicholson's girls had a young one? I heard it,"-- undoubtedly make such a charge, and are therefore actionable per se. Ky. St. § 1; Nicholson v. Dunn (Ky.) 52 S.W. 935; Same v. Rust Id. 933. This being so, we do not think the court should have required the jury to believe the words to have been spoken "maliciously," in instruction No. 1. "In ordinary slander the question of malice is never submitted to the jury, except as to the amount of damages." Newell, Defam. p. 345, § 54, quoting from King v. Root, 4 Wend. 113. And though the court, in the second instruction, undertook to give the jury a definition of malice as applicable to this action, and instructed them that, if they believed the defendant spoke the words as set forth, "they must take it as true that the words were spoken with such malice," which in ordinary cases might be held to correct any evil effect of the use of the word "malicious" in the first instruction, yet the argument of counsel, as shown in the bill of exceptions based on the use of the word "malicious" in the first instruction, coupled with the construction which in argument he put upon the second instruction, seems to us to have been prejudicial to appellant. It appears from the bill that counsel for the defense explained to the jury that they must believe that the word "malicious," in the first instruction required them to believe that the words were spoken with an intention to injure the character of the plaintiff, and that this was what was meant in instruction No. 2, and the court, though requested, refused to correct counsel in this interpretation.

The court permitted evidence of general rumor of the plaintiff's unchastity to go to the jury, and gave an instruction that such testimony should be considered only in mitigation. This was done under a general denial in the answer of the speaking of the words, and in this respect the case at bar differs from the two cases in which the same appellant was plaintiff, cited supra, in which the answer admitted the speaking of the words, but...