Shipp v. Patten
Decision Date | 22 May 1906 |
Citation | 123 Ky. 65 |
Parties | Shipp v. Patten. |
Court | Kentucky Court of Appeals |
Appeal from Harrison Circuit Court.
Judgment for plaintiff. Defendant appeals. Reversed.
M. C. SWINFORD, attorney for appellant.
HAZELRIGG & HAZELRIGG for appellant.
C. J. BRONSON, HANSON PETERSON and A. R. BURNAM of counsel.
BERRY & WEBSTER, for appellee.
JOHN R. ALLEN, for appellee.
OPINION BY JUDGE NUNN — Reversing.
The appellee instituted this action against appellant, and charged that he willfully and maliciously uttered and published of and concerning her, in the presence and hearing of divers persons, these words: The appellant filed a demurrer to the petition, which was overruled. It is contended that this was error, for the reason that the words charged were not per se actionable. Appellant based this contention upon the theory that, as appellee was one of the clerk's in appellant's store, she had such possession of the goods that, in taking them from the shelves, secretly, with the purpose to convert them to her use, she was not guilty of the crime of larceny, but only of a breach of trust.
The appellant's counsel refers to authorities which seem to sustain his position, but the weight of authority and the more reasonable rule appears to be opposed to it. In Robinson's Kentucky Criminal Law vol. 1, section 420: See also, on the same point, Warmoth v. Commonwealth, 81 Ky. 133, 4 Ky. L R 937. Admitting, however, the contention of appellant's counsel that appellee's possession of the goods was such that, in taking and converting them, she was not guilty of the crime of larceny, yet the words charged in the petition show that she was guilty of the offense provided by a statute enacted in 1902 — that of fraudulently converting property, held in a trust relation, without the consent of the owner. See Commonwealth v. Barney, 74 S. W. 181, 24 Ky. Law Rep. 2352, and Allen v. Brady, 83 S. W. 565, 26 Ky. Law Rep. 1173.
The appellant filed an answer and several amended answers, and in substance denied that he willfully or maliciously uttered or published the words charged, or that he spoke or published the words as charged, but alleged in substance that he spoke and published them in effect as charged, except the word "dishonestly," which word he denied having used of and concerning the plaintiff. By a second paragraph he pleaded that the words actually used by him of and concerning the appellee were spoken in confidence and were under the circumstances a privileged communication, and gave the facts and circumstances showing the privilege. Upon motion of appellee, appellant was required to elect whether he would stand by his denial of having charged appellee with taking the goods "dishonestly," or upon his plea of privileged communication in the second paragraph. Under protest he elected to stand upon the defense of privileged communication. The substance and effect of the pleadings of appellant were to deny the malice and the use of the word "dishonestly" wherever it occurred in the alleged slanderous words charged, and an admission of the use of all the other words. By the action of the court he was forced to admit the use of the word "dishonestly" before being allowed the right of his plea of privilege. This placed the defendant at a great disadvantage. The proof showed that in relating the communication to Dr. Varderen, to whom the alleged slanderous words were uttered, the appellant did not use the word "dishonestly," but the court in instructing the jury said: "That it was admitted by the pleadings that appellant had spoken of and concerning the appellee the language as charged in the petition" and then...
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