Weinstein v. Rhorer

• Decision Date: 23 October 1931
• Citation: 42 S.W.2d 892,240 Ky. 679
• Parties: WEINSTEIN v. RHORER.
• Court: Kentucky Court of Appeals

42 S.W.2d 892

240 Ky. 679

WEINSTEIN v. RHORER.

Court of Appeals of Kentucky

October 23, 1931

Appeal from Circuit Court, Bell County.

Action by Arthur Rhorer against Herman Weinstein. Judgment for plaintiff, and defendant appeals.

Reversed.

Low &amp Bryant, of Pineville, and Adrian Weinstein, of Middlesboro for appellant.

J. E Sampson, of Middlesboro, for appellee.

BRATCHER J.

The appellee, who was the plaintiff below, instituted this action against the appellant, the defendant below, to recover damage for slander, alleged to have been spoken by the appellant concerning the appellee.

The appellee was city prosecuting attorney of Middlesboro, Bell county, Ky. and was, at the time of the alleged acts, a candidate for re-election to that office.

The petition avers that defendant "falsely and maliciously spoke and published in the presence and within the hearing of R. D. Chumley and divers other persons, in Bell County Kentucky, of and concerning this plaintiff and his candidacy for said office these words: 'You can't afford to vote for Arthur Rhorer, he is a grafter.' *** At the same time and on the same occasion and to the same person or persons the defendant spoke and published concerning this plaintiff and his candidacy for said office these words: 'He is whore hopper.' *** At the same time and occasion and to the same persons the defendant spoke and published concerning this plaintiff and his candidacy for said office these words: 'He is dishonest and a drunkard."'

It is alleged that the appellee is an attorney at law, a member of the Bell County Bar with offices in the city of Middlesboro, and that the derogatory statements were made with the intent to do damage, and did damage, the appellee in the practice of his profession, and that said statements tended to degrade and disgrace him in the estimation of the public, and prays for damage in the sum of $2,900.

The appellant, Herman Weinstein, was at the time a resident of Cincinnati, Ohio, and had lived there for the past eleven years. Prior to that time he had lived in the city of Middlesboro, and now owns considerable property in that city and spends some of his time there looking after his property.

The appellant entered a motion to require the appellee to paragraph the petition, which was overruled, and an answer was then filed which was a denial of the material allegations of the petition. The case was assigned for trial to the May term of the Bell circuit court, 1930, and at the beginning, or some time before final submission to the jury, the plaintiff tendered and filed an amended petition. The trial was then stopped and the case continued.

This amended petition "reiterates all allegations of his original petition so far as they are consistent with and pertinent to this amendment." The petition then states: "The defendant in the presence of Thurman Rainey and divers other persons falsely and maliciously spoke of and concerning this plaintiff and his candidacy these words: 'You can't afford to vote for Arthur Rhorer. He is a whore-hopper, a drunkard and a grafter."'

Plaintiff further states that, "In the presence of W. G. Yoakum, J. H. Williams and divers other persons the defendant falsely and maliciously spoke of and concerning this plaintiff and his candidacy the following words: 'Arthur Rhorer is a drunkard and grafter and works for such a small salary he had to graft."' The appellee objected to the filing of this amendment, which objections were overruled.

The appellant moved the court to require the appellee to paragraph his amended petition and the motion was overruled; exceptions were saved, and thereupon an answer was filed. This answer is in two paragraphs. The first paragraph denied the material allegations of the petition. The second paragraph undertook to plead the truthfulness of the charge of drunkenness and qualified privilege as to the various other allegations in the petition and amended petition. The appellee filed a demurrer to this second paragraph, which was sustained. A second amended answer was filed. The appellee's demurrer was extended to this second amended answer, which was sustained, and this second paragraph dismissed over the objections of the appellant. Trial was had and a verdict in favor of the appellee in the sum of $1,500, $750 of which was punitive damage. Judgment was entered, motion and grounds for a new trial were filed, and overruled with proper exceptions. Bill of exception was approved, and from the judgment this appeal is prosecuted.

Nine grounds of complaint are set out, some of these grounds being divided into subdivisions. It is not necessary to review all these grounds. The first ground relied upon is that recovery cannot be had on the original petition. It will be noted that the allegations of the original petition as to the alleged slanderous matter, except the charge of graft, nowhere avers that these statements were made or spoken falsely or maliciously. It is argued that by reason of the failure of the petition to charge malice, it is wholly insufficient and avers no cause other than that of graft or being a grafter. In support of that ground, we are referred to the cases of Williams v. Gordon, 11 Bush, 695; Turner v. Hamlin, 152 Ky. 469, 153 S.W. 778; Newman's Pleading and Practice (2d Ed.) 2326; 37 C.J. 33, § 353. Quoting Newman's Pleading and Practice, it is said: "In actions for libel or slander the quo animo is the gist of the action and the malice of the defendant must be alleged in the petition. It must, therefore, in such cases be explicitly alleged that the words were spoken or published maliciously. It will not be sufficient in an action of slander to allege that the defendant spoke 'these slanderous words viz.,' without alleging malice." This rule is supported by a long unbroken line of decisions cited in the footnotes to the above text. It is to our minds clear that the only well-pleaded cause of action set out in the original petition was the statement made to R. D. Chumley and others that the appellant is a grafter. This charge is alleged to have been made falsely and maliciously, but as to the other charges there is a total failure of any allegation of malice. Hence, they were not well-pleaded causes of action, and for that reason the court erred in overruling appellant's motion to paragraph the petition. Newman's Pleading and Practice, § 550 G. There are some improperly pleaded causes of action in its present form attempted that would render it impossible to reach in any other manner than a demurrer to the specific separate paragraphs. Posey v. Green, 78 Ky. 162; Snowden v. Snowden, 96 S.W. 922, 29 Ky. Law Rep. 1113; I. C. R. R. v. Edelen, 154 Ky. 78, 156 S.W. 1029.

The second ground is that the amended petition is insufficient and should not have been filed; that the objection to its being filed tested its sufficiency. Hofgesang v Silver, 232 Ky. 503, 23 S.W.2d 945, 68 A. L. R. 1481. This complaint is directed at the allegations of the amended petition, and it is contended that there is no allegation of fact tending to show that any of these statements were made in the hearing of any one. The amended petition did not perfect allegation of original, but set up new, causes of action. It is true that the amended petition nowhere alleges that the slanderous words were spoken in the hearing of any persons. It alleges that these statements were made in the presence of Thurman Rainey and in the presence of W. G. Yoakum and J. H. Williams. It is not alleged that they were made in the hearing of these people, or that either Rainey, Yoakum, or Williams heard the statement. It is also complained that this amended petition should be paragraphed and that the court erred in overruling the motion to paragraph. In 17 R. C. L. 316, § 56, it is stated: "But it is obvious that, as a rule, the words uttered must not only be started on their way by the speaker, but that some person must have heard and understood them." On the other hand, it is argued this amendment taken with the original petition is sufficient on this point of publication, because the original shows these statements were made in the presence and hearing of these parties and the amendment reiterates and makes a part of the amendment all statements contained therein. That is perhaps a tenable position as to all matter pleaded in the original, but as to new allegations setting up new causes of action it would not be true, and the same certainty and technical perfection required in stating the...