Paducah Newspapers, Inc. v. Bratcher

• Decision Date: 30 November 1937
• Parties: PADUCAH NEWSPAPERS, Inc., v. BRATCHER.
• Court: Kentucky Court of Appeals

118 S.W.2d 178

274 Ky. 220

PADUCAH NEWSPAPERS, Inc., v. BRATCHER.

Court of Appeals of Kentucky

November 30, 1937

As Modified February 22, 1938.

Appeal from Circuit Court, Calloway County.

Action by A. S. Bratcher against the Paducah Newspapers, Inc. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

J. D Mocquot, of Paducah, and Joe Lancaster, of Murray, for appellant.

J. C Speight, of Mayfield, and F. F. Acree, of Murray, for appellee.

CLAY Justice.

The appeal is from a $5,000 judgment for libel.

Appellee A. S. Bratcher, was an instructor in the Commerce Department of Murray State Teachers College. He had with him two small children by a former wife from whom he had been divorced. She was living in the state of Georgia. On September 7, 1935, he brought suit in the Calloway circuit court against his wife and asked that he be given the permanent care, custody, and control of the two children. By proper affidavit a warning order was asked and made. On November 11, 1935, Martha Bratcher filed in open court an answer and counterclaim denying the allegations of the petition, and alleging several shortcomings on the part of plaintiff for the purpose of showing that he was unfit to have the custody of the children. On November 16, 1935, the Paducah Sun Democrat, owned by appellant, published an article concerning the litigation in the Calloway circuit court, and setting forth the substance of the charges made by Mrs.

Bratcher against her husband. A few days later this suit was filed, and appellant defended on the ground of privilege. A demurrer was overruled to that paragraph of the answer. At the conclusion of the evidence a peremptory was asked and refused. As the peremptory should have gone if the publication was privileged we shall first consider that question.

Always it has been the rule that a fair report of judicial proceedings without malice is privileged. The reason for the rule is thus stated by Mr. Justice Lawrence in Rex v. Wright, 8 T.R. 293, 298: "Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." There is disagreement among the authorities as to what stage of the proceedings the privilege may be invoked. It may be conceded that for a long time the great weight of authority has supported the view that the filing or service of a pleading without any judicial action thereon was not a judicial proceeding within the meaning of the rule giving a qualified privilege to a report of such a proceeding. This rule was applied in Cowley v. Pulsifer, 137 Mass. 392, 50 Am.Rep. 318, where it was held in an opinion by Judge Holmes, afterwards Mr. Justice Holmes of the United States Supreme Court, that the publication in a newspaper of the contents of a petition for the disbarment of an attorney, filed in vacation and not presented or docketed, was not privileged. In discussing the matter Judge Holmes said: "If these are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity." Later on the same court held that the publication of libelous matter stated in a complaint which has not been brought to the attention of the court, except so far as necessary to secure leave to file it after the return day, was not privileged. Lundin v. Post Publishing Co., 217 Mass. 213, 104 N.E. 480, 52 L.R.A. (N.S.) 207. Among numerous other cases so holding are Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L.R.A. 599, 16 Am.St.Rep. 544; Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 61 So. 345.

Recently the question arose in Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 155, 52 A.L.R. 1432, where the court in an able opinion by Judge Pound, concurred in by all the other judges, held that the publication by a newspaper without malice of a fair and true statement that the complaint filed in a specified action charged the defendants with obtaining a stated sum of money by fraudulent practices, is privileged, although the pleading had not yet come before the court, and was withdrawn before it did so, on the ground that the filing of a pleading is a public and official act in the course of judicial proceedings within the meaning of a statute denying a right of action for the publication of reports of such proceedings. In reaching this conclusion the court used the following language:

"Mr. Justice Holmes in Cowley v. Pulsifer, 137 Mass. 392, 50 Am.Rep. 318, after putting aside

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