Shields v. Booles

• Decision Date: 05 May 1931
• Parties: SHIELDS v. BOOLES et al.
• Court: Kentucky Court of Appeals

38 S.W.2d 677

238 Ky. 673

SHIELDS v. BOOLES et al.

Court of Appeals of Kentucky

May 5, 1931

Appeal from Circuit Court, Mercer County.

Action by B. F. Shields against W. W. Booles and another. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Woodward Hamilton, Hobson and Oldham Clarke, all of Louisville, and E H. Gaither, of Harrodsburg, for appellant.

Garnett & Van Winkle, of Louisville, and C. E. Rankin, of Harrodsburg, for appellees.

WILLIS J.

B. F Shields and W. W. Booles, both of Spencer county, were rival candidates in the primary election of August 3, 1929, for the Democratic nomination for State Senator in the Twentieth Senatorial District, composed of the counties of Spencer Anderson, Franklin, and Mercer. Booles was awarded the certificate of nomination, and it does not appear that any contest of the nomination was filed. Immediately following the primary election, Shields sued Booles and his campaign chairman, Hanley Bohon, to recover damages in the sum of $25,000.

The defendant Hanley Bohon filed motions to paragraph the petition, and to strike therefrom several averments specified in the motion. The defendant W. W. Booles filed similar motions, together with a motion to elect between the two causes of action for slander and libel set up in the petition, and also a general demurrer to the petition as amended. The circuit court sustained the motion to strike, and the general demurrer, which ruling resulted, when the plaintiff declined to plead further, in a dismissal of the action. This appeal is prosecuted to review and reverse the ruling of the circuit court.

Since the ultimate decision was upon demurrer to the petition, it is necessary to indicate the scope and character of that pleading. It sets forth the adversary relations of the parties in seeking the senatorial nomination, the eligibility and qualifications of both candidates for the office, due compliance with the law by each candidate so as to have his name printed on the official ballot, and other formal allegations.

It is then charged that the two defendants, together with other persons unknown to the plaintiff, entered into a conspiracy to procure large sums of money to be used in circulating false, malicious, and scandalous statements concerning plaintiff in order to bring about his defeat and to accomplish the nomination of Booles; that as a result of the conspiracy the money was procured in large sums from the race-track gambling interests in Kentucky, and with that money the defendants, and their associates, personally interviewed various and sundry persons in the four counties comprising the district; that voters who opposed legalized race-track gambling were told that plaintiff, while a member of the House of Representatives of this state in 1920, had voted against a repeal of the pari-mutuel law, and in favor of race-track gambling; that such statement was false and was made maliciously and with knowledge of its falsity; that W. W. Booles had served in the State Senate for eight years and had never voted in favor of the race-track gambling, pari-mutuel law, which was a false statement designed to alienate supporters of plaintiff and to affiliate them with Booles; that defendants published conspicuously on the front page of a Harrodsburg newspaper of wide circulation a written statement concerning plaintiff that:

"The Shields Committee has seen cause to attempt to inject the mutual issues in this campaign.

Mr. Booles served for eight years in the Kentucky Senate and in all this time, he never cast a vote in favor of the pari-mutuals law.

His opponent, Dr. Shields, served in the Legislature from Spencer County in the 1920 session. The pari-mutual law did come before Dr. Shields in the 1920 Legislature in Senate Bill No. 66, which was a bill to repeal the pari-mutual law and Dr. Shields voted against repeal of the present racing law and in favor of legalized gambling."

That the statements were false and deceptive and misrepresented the public records of both candidates; that the statements were calculated and contrived to deceive voters and to induce them to vote against the plaintiff and for the defendant; that many voters were thus and thereby caused to vote for Booles and against plaintiff; that various individuals in various precincts were appointed and selected to circulate orally the false and malicious statements already indicated; and that all of the wrongful acts resulted to the great harm and detriment of the plaintiff, and to the advantage of defendant. It was further alleged that many voters in each and every one of the counties of the district were bribed to vote for Booles and against the plaintiff, all to his great damage and harm; that plaintiff was an active and intense opponent of race-track gambling in Kentucky and publicly proclaimed his position in favor of repealing the pari-mutuel law; that Booles made no public declaration for or against repeal, but did cause the position of plaintiff to be misrepresented, which resulted in plaintiff being deprived of the Democratic nomination for Senator. The allegation respecting damage is "that by reason of the false and malicious statements of the defendants and each of them and their associates he has been damaged in the sum of five thousand dollars." The prayer of the petition was for $5,000 compensatory, and for $20,000 punitive, damages.

By an amended petition the plaintiff alleged: "That the associates of the defendants with whom they conspired as alleged in the original petition were representatives of and interested in Race Course Gambling in Kentucky and interested in maintaining the law in force in Kentucky legalizing Race Course Gambling and that in pursuance of said purpose they were interested in and conspired to defeat this plaintiff and nominate the defendant Booles; that the monies so raised by the defendants and their coconspirators were raised for the purpose of publishing and circulating said false and slanderous statements and to hire and influence others to so circulate and publish said statements and to bribe voters to vote against this plaintiff and for the defendant Booles and to defeat this plaintiff in said nomination and to humiliate and degrade him, and that the defendants by the use of said money procured and hired various and divers persons to circulate said false statements and to bribe voters to vote against this plaintiff, and to assist in defeating plaintiff for said nomination. He says that all of said acts were done by the defendants and their conspirators fraudulently and in pursuance of said purpose of defeating said plaintiff for the nomination and slandering and humiliating this plaintiff, and that by reason of said wrongs and illegal conspiracy and the acts done thereunder he has been damaged as alleged in his original petition."

The argument for the appellant is rested upon three propositions, which are well stated in his brief and may be considered in the order adopted by him:

(1) "A combination of two or more persons to do a lawful thing in an unlawful manner, or by unlawful means, is an illegal conspiracy and a person injured thereby has a right of action at law for damages against the joint tort-feasors."

(2) "Statements, oral and written, falsely charging that a candidate for office is misrepresenting his official acts and does not believe in the principles he openly espouses are slanderous, if made orally, and libelous, if made in writing, and actionable per se in either event."

(3) "Depriving an individual of his right to run for office, and to receive the support of every voter who is so inclined, and to be elected, is unlawful, and constitutes an actionable tort."

The only effect of the charge of conspiracy is to fix joint responsibility upon the alleged conspirators, for things done in accomplishing the objects of the alliance, and the plaintiff has no cause of action therefor, unless he has alleged an actionable injury to himself caused by the wrongful or unlawful acts of the conspirators or of one of them, in pursuance of the unlawful combination. 12 C.J. p. 584, § 104; Standard Oil Co. v. Doyle, 118 Ky. 662, 82 S.W. 271, 26 Ky. Law Rep. 544, 111 Am.St.Rep. 331; Chambers v. Probst, 145 Ky. 382, 140 S.W. 572, 36 L.R.A. (N. S.) 1207; Louisville & N. R. R. Co. v. Ohio Valley Tie Co., 161 Ky. 222, 170 S.W. 633, reversed 242 U.S. 288, 37 S.Ct. 120, 61 L.Ed. 305; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997, 22 L.R.A. (N. S.) 607, 128 Am.St.Rep. 492; Leech v. Farmers' Tobacco W. Co., 171 Ky. 791, 188 S.W. 886; Lawrence Trust Co. v. Sun-American Pub. Co., 245 Mass. 262, 139 N.E. 655; Hundley v. L. & N. R. R. Co., 105 Ky. 162, 48 S.W. 429, 20 Ky. Law Rep. 1085, 63 L.R.A. 289, 88 Am.St.Rep. 298; Brewster v. Miller, 101 Ky. 368, 41 S.W. 301, 19 Ky. Law Rep. 593, 38 L.R.A. 505; Aetna Ins. Co. v. Com., 106 Ky. 864, 51 S.W. 624, 21 Ky. Law Rep. 503, 45 L.R.A. 355. Indeed, that much is conceded, but it is earnestly insisted that appellant has alleged a cause of action against the appellees authorizing the recovery of damages. Two types of illegal acts perpetrated by them in carrying out the common design are relied upon by the appellant. The first concerns the charge that appellees, by the illegal use of money, bribed voters to support Booles, and to defeat Shields for the nomination he sought, and the second relates to the contention that the appellees willfully, knowingly, and maliciously spread slanderous and libelous statements about the appellant.

In so far as concerns the allegations respecting the bribery of voters, it is apparent that no cause of action for damages was manifested, and such averments were not appropriate in a case of this character.

The loss of a...