Provident Sav. Life Assur. Soc. v. Johnson

• Decision Date: 06 March 1903
• Parties: PROVIDENT SAV. LIFE ASSUR. SOC. v. JOHNSON.
• Court: Kentucky Court of Appeals

72 S.W. 754

115 Ky. 84

PROVIDENT SAV. LIFE ASSUR. SOC. v. JOHNSON.

Court of Appeals of Kentucky.

March 6, 1903

Appeal from circuit court, Hickman county.

"To be officially reported."

Action by D. Johnson against the Provident Savings Life Assurance Society. From a judgment for plaintiff, defendant appeals. Reversed.

Humphrey Burnett & Humphrey and R. B. Flatt, for appellant.

Robertson & Thomas and Greer & Reed, for appellee.

HOBSON J.

Appellee Johnson, was for some time an agent of the appellant, the Provident Savings Life Assurance Society. He left its service, and entered the service of the Union Central Life Insurance Company, and after this published in the county paper the following:

"A few months of work for the Provident Savings convinced me that I was misled, just as hundreds of policy holders of that company have been; that is, by false representation of general agents and managers of the company. An honest man when he finds his error, tries to atone for it. I am doing that now by selling my friends insurance in the Union Central Life Insurance Company, that is acknowledged by all insurance men to be absolutely reliable."

Also the following: "None of the policies sold by the Provident Savings' agents as straight life, whether old or not, are of any value as collateral or in cash. Such contracts have no reserve behind them, and on that account are worthless, unless the insured dies while they are in force."

Also the following: "Also I further state that the work of that company's agents during the last five years in Western Kentucky has been characterized by twisting policies of other companies, and selling their own policies under misrepresentations; also by rebating, and other unfair and rotten methods."

Appellant, after laying the facts before counsel, and being advised that a prosecution for criminal libel might be maintained, went, by its agents, before the grand jury, and had appellee indicted for libel. The indictment set out the matter above quoted. The defendant entered a demurrer to the indictment, and on the hearing of this demurrer the commonwealth's attorney elected to prosecute for the first paragraph of the libelous matter quoted. The case was then tried on this charge. The defendant was acquitted. He afterwards filed this suit to recover of appellant damages on account of the prosecution, charging that it was malicious, and without probable cause. The jury returned a verdict in his favor for $1,250.

The proof shows that appellee, after he was indicted, had his father to go on his bond when arrested on the indictment, and was in custody but a short time while going with the sheriff to his father's for the purpose of signing the bond. No special damage is shown, except the cost of defending the prosecution. The defendant offered to show on the trial that the second and third paragraphs of the libelous matter charged in the indictment were false, and known by the defendant to be false, when published by him. The court refused to allow this proof, confining the evidence entirely to the first paragraph. This was error. Appellant had charged appellee with criminal libel in publishing the matter embraced in all three paragraphs. It was all set out in the indictment, which was procured by appellant, and is the basis of this action. If appellant had probable cause for the prosecution, the action before us can not be maintained; and if either one of the paragraphs was false, and was intentionally published by the defendant without justifiable cause,...