Tharp v. Nolan

• Decision Date: 17 February 1905
• Citation: 84 S.W. 1168,119 Ky. 870
• Parties: THARP v. NOLAN.
• Court: Kentucky Court of Appeals

84 S.W. 1168

119 Ky. 870

THARP v. NOLAN.

Court of Appeals of Kentucky.

February 17, 1905

Appeal from Circuit Court, Powell County.

"To be officially reported."

Action by O. K. Nolan against A. J. Tharp. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Nesbitt & Watson, O. H. Pollard, and R. L. Greene, for appellant.

L. A West and Riddell & Riddell, for appellee.

HOBSON C.J.

Appellee sued appellant for slander; charging that he said about him on or about July 10, 1899, and on divers other days, the following words: "I bribed him in the railroad case. I know he was bribed, and can do it again. He sold out in the railroad case, and received a bribe." He alleged that the defendant thereby meant that he had committed the crime of receiving a bribe and being bribed as a citizen and justice of the peace, which office he then held, to vote on a matter to be decided by the plaintiff, as such officer, in regard to withdrawing a suit by the county of Estill against the Richmond, Nicholasville, Irvine & Beattyville Railroad Company, as to the delivery of the bonds of the county to the company, which matter was then to be decided by the plaintiff and associate justices of the peace of the county, as to the withdrawal or dismissal of that suit. The defendant filed answer traversing the allegations of the petition on April 1 1901. A change of venue was then granted to Powell county and the case was finally tried in Powell at the June term, 1902. On the trial the defendant offered to file an amended answer in which he reiterated his denial that he had spoken of the plaintiff the words set out in the petition, but alleged that he had spoken of him these words, and that they were true: "I furnished the money to elect him justice of the peace for Estill county in consideration of his agreeing to vote for the dismissal of a suit then pending in the Estill common pleas court in favor of said county against the Richmond, Nicholasville, Irvine & Beattyville Railroad Company, and after his election he did vote to dismiss said suit." The court refused to allow the amended answer to be filed, and the case went to trial under the denials of the original answer. The jury returned a verdict for the plaintiff in the sum of $500, and the defendant appeals.

The proof showed that Estill county had made a subscription to the Richmond, Nicholasville, Irvine & Beattyville Railroad Company, and that the county had instituted a suit in the Estill circuit court to restrain a delivery of the bonds, and that at this stage of the proceeding an effort was made by the railroad company to get the fiscal court to order the suit dismissed. An election of magistrates was held, at which the plaintiff was elected, and after his election he, with others, voted for the dismissal of the suit, and it was dismissed. The proof for the plaintiff on the trial tended to show that after this suit had been dismissed the defendant said of the plaintiff that he had bought him in the railroad case, and, if necessary, he could buy him again. But the evidence, taken as a whole, which was introduced on the behalf of both parties, tended to show that the defendant stated at the time that he furnished the money to elect the plaintiff to the office of justice of the peace; that for this the plaintiff agreed, when elected, to vote to dismiss the suit; and that he did vote to dismiss it. On this evidence, the defendant's testifying that he had furnished the money as indicated, and had said of the plaintiff, in substance, the words alleged in his amended answer, and only those words, the court instructed the jury as follows:

"(1) If the jury believe from the evidence that the defendant, A. J. Tharp, on or about the 10th day of July, 1898, spoke of and concerning the plaintiff, O. K. Nolan, the words: 'I bribed him in the railroad case. I know he was bribed, and I can do so again. He sold out in the railroad case, and received a bribe'--or those words in substance--they should find for the plaintiff, and fix his damages at such a sum as the jury may believe from the evidence will fairly and reasonably compensate the plaintiff for the disgrace, shame, humiliation, mortification, or anguish of mind suffered by the plaintiff. If they believe he suffered such by reason of the speaking of said words, or substantially said words, if they believe from the evidence that the defendant spoke them, and the jury may also allow such punitive damages as they may deem proper under all the circumstances introduced in evidence, not exceeding, in all,

...