Smith v. Pure Oil Co.

• Decision Date: 16 May 1939
• Citation: 278 Ky. 430,128 S.W.2d 931
• Parties: SMITH v. PURE OIL CO. et al.
• Court: Kentucky Court of Appeals

128 S.W.2d 931

278 Ky. 430

SMITH v. PURE OIL CO. et al.

Court of Appeals of Kentucky

May 16, 1939

Appeal from Circuit Court, Laurel County; W. E. Begley, Judge.

Action for libel by Walter Ray Smith against the Pure Oil Company and others. The petition was dismissed on demurrer, and the plaintiff appeals.

Reversed.

W. R Henry, of Williamsburg, and Finley Hamilton, of London, for appellant.

Tuggle & Tuggle, of Barbourville, and Walter B. Smith and N. R Patterson, both of Pineville, for appellees.

STANLEY Commissioner.

This is an action for libel by Walter Ray Smith against Pure Oil Company, H. D. Sanders and James Adams. The petition was dismissed on demurrer and the plaintiff appeals.

It charges that in March, 1938, the defendants erected or caused to be erected and displayed a large sign board at "Sanders Servistation", the company's property on U.S. Highway No. 25, in Laurel County containing the following false and malicious statements:

"WARNING!

Turn Left. U.S. 25-E

Constables & Fee Grabers

May Get You in Whitley County

Ray Smith County Attorney Gets

40% of Fine Plus $5.00 Cost."

The plaintiff was and is the County Attorney of Whitley County. His petition states that he is the person named and referred to in the publication; avers that it means that he as a "fee grabber" would corruptly accept or receive a percent of fines and costs being wrongfully assessed against persons traveling in Whitley County through their arrest by constables, thereby imputing his unfitness for the office; that it was intended to prejudice the public against plaintiff and to subject him to disgrace, obloquy and ridicule in the performance of his official duties and in his profession as a lawyer; that the defendants intended and meant by the statements to charge him with the crime of unlawfully, feloniously and wrongfully receiving and accepting as County Attorney a percent of fines and costs derived from the conviction of persons who were not guilty of violating any law; and that the statements were and are false and known to the defendants and each of them to be so concerning the plaintiff. It is further alleged that the sign was intended to and did convey to the many people passing the place on the highway that persons who operated automobiles through the county would be unlawfully and wrongfully arrested by constables, fined in the courts in which the plaintiff, as County Attorney, represented the Commonwealth of Kentucky, upon false charges and contrary to law, and that those persons were being forced by the officers and the courts to pay fines for offenses of which they were not guilty, and the plaintiff was unlawfully, wrongfully and corruptly receiving 40% of the fines plus $5.00 costs. It is charged that the statements were maliciously made and false "as to this plaintiff". There are other appropriate allegations of defamation, injury and damage. In addition an injunction was asked requiring the removal and discontinuance of the sign. It was later removed and that part of the case became moot.

It has always been the law that a written publication is libelous which falsely charges or imputes dishonesty or engagement in fraudulent enterprises of such a nature as reflects upon the character and integrity of a person and to subject him to the loss of public confidence and respect. Hart v. Reed, 40 Ky. 166, 1 B. Mon. 166, 35 Am.Dec. 179. Because of the public interest this rule finds a more extensive application where the false defamatory charge or imputation affects the professional or official capacity of the person of whom it is written. If it imputes want of integrity, malfeasance or misfeasance, or is calculated to diminish public confidence in him the publication is actionable per se. Williams v. Riddle, 145 Ky. 459, 140 S.W. 661, 36 L.R.A.,N.S., 974; Ann.Cas.1913B, 1151; Spears v. McCoy, 155 Ky. 1, 159 S.W. 610, 49 L.R.A., N.S., 1033; Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677; 17 R.C.L. 301; 36 C.J., 1187, 1188. Therefore, "statements accusing officers of official oppression and misuse of office to extort fees from members of the public have repeatedly been held actionable per se." 17 R.C.L. 303. This, obviously, is quite different from fair, reasonable and good faith comment on and criticism of public men, which is privileged. Tipton v. Rains, 228 Ky. 677, 15 S.W.2d 496. Furthermore, as is stated in Commercial Tribune Publishing Company v. Haines, 228 Ky. 483, 15 S.W.2d 306, 307: "It is a fundamental principle in the law of libel and slander that the defamatory matter complained of should be construed as a whole, and that the language employed therein should receive its common and ordinary acceptation in the light of the conditions and circumstances under which it was published. Also, that defamatory matter, printed or spoken, charging an officer with neglect of his official duties, so as to disqualify him for their punctual performance and to render him unfit to discharge them, is actionable per se, and it is especially so when the defamation is printed and circulated, and the same principle applies where the language is defamatory of one in his profession." See, also, Smallwood v. York, 163 Ky. 139, 173 S.W. 380, L.R.A.1915D, 578.

With these principles in mind, we look to the publication before us. We cannot assent to the argument of the appellees that the phrase, "Ray Smith County Attorney gets 40% of the fine plus $5.00 cost", should be regarded independently of the other portions of the sign and that as so disassociated it speaks the...