Williams v. Riddle

• Decision Date: 22 November 1911
• Parties: WILLIAMS v. RIDDLE.
• Court: Kentucky Court of Appeals

140 S.W. 661

145 Ky. 459

WILLIAMS v. RIDDLE.

Court of Appeals of Kentucky.

November 22, 1911

Appeal from Circuit Court, Hopkins County.

Action by W. M. Williams against George Riddle. Judgment dismissing the petition, and plaintiff appeals. Affirmed.

Gibson & Kincheloe, for appellant.

Letcher R. Fox, for appellee.

MILLER J.

The question for decision is this, Was appellee liable in damages for slander when he said of and concerning appellant "W. M. Williams is a damn negro, and his mother was a mulatto"? The trial judge sustained a demurrer to the petition, and, the appellant having declined to plead further, the petition was dismissed, and Williams appeals.

There is a marked distinction, probably the result of some historical accident, between slander and libel. An action may be maintained for words written, for which an action could not be maintained if they were merely spoken.

In Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308, Mr. Justice Clifford said: "Actionable words are, doubtless, such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable, when written or printed and published, which would not be actionable if merely spoken, without averring and proving special damage."

In libel, any defamatory matter is prima facie libelous, while the same matter, when spoken, might require proof of special injury or damage to sustain a recovery. This distinction has been made between written and spoken slander as far back as to the time of Charles the Second, and the difference has been recognized by the courts for at least two centuries. Thorley v. Lord Kerry, 4 Taunt. 364, 8 Eng. Rul Cas. 9; Colby v. Reynolds, 6 Vt. 489, 27 Am.Dec 574; McGee v. Wilson, Litt. Sel. Cas. 188; Shelton v. Nance, 7 B. Mon. 129.

In Riley v. Lee, 88 Ky. 603, 11 S.W. 713, 11 Ky. Law Rep 586, 21 Am.St.Rep. 358, it was said any written or printed publication which tends to degrade or disgrace the person about whom it is written or printed, or which tends to render him odious, ridiculous, or contemptible in the estimation of his friends, or acquaintances, or the public, is libelous. The case before us is, however, one of slander.

Sedgwick, in his "Elements of the Law of Damages" (2d Ed.) p. 152, says: "Special damage, also called special or particular injury, is, properly speaking, the kind of injury which gives a right of action otherwise non-existent. In slander, many spoken words are not in themselves actionable; they do not, in law, import injury. But if the plaintiff shows that they have caused him a special injury, he may maintain an action."

Actionable words are therefore of two kinds: (1) Those that are actionable in themselves, without proof of special damage or injury; and (2) those that are actionable only by reason of some actual special damage or injury sustained by the party slandered.

Sedgwick states the classification as follows: "The action of slander lies for oral defamation. In libel, mere proof of publication is sufficient. But of spoken words the law takes a very different view. Insulting language or conduct alone is, as already explained, never a ground for damages. Indeed, it has been expressly decided that, although insulting language or conduct may aggravate an assault, it is not itself an assault. It is clear that if an action lay for all inconsiderate, vituperative, reproachful, or condemnatory words, it would lead to great abuses, and fill the courts with absurd and trivial suits. It is equally clear that for words naturally and necessarily producing injury an action must lie. But a third class of cases also exists where the words, though not in themselves such as naturally lead to an inference of damage, do, as a matter of fact, produce it, and in this case the person injured has a clear right to redress. Had the law of defamation developed itself in what may be termed a natural way, the cases would have classified themselves under this head in accordance with the actual facts; but an arbitrary rule, introduced into the law of England in the early times, has to a certain extent made the law of slander artificial. Instead of inquiring, under the rule of certainty and proximate cause, into the effect of the words spoken, the courts early laid it down, as a matter of law, that in the following cases only were words slanderous, or actionable per se: (1) Words, falsely spoken, imputing the commission of a crime involving moral turpitude, for which the party might be indicted and punished. (2) Words imputing an infectious disease, likely to exclude him from society. (3) Words imputing unfitness to perform the duties of an office or employment. (4) Words prejudicing him in his profession or trade. (5) Words tending to disinherit him. "In all other cases spoken words are either (a) not actionable at all, or only actionable (b) on proof of special damage." This classification is recognized in the leading case of Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308.

The law of slander is therefore much narrower in its scope and operation than the law of libel. Thus, in Caldwell v. Abbey, Hardin, 529, it was held that no action could be maintained for calling a man "a damned rogue"; and a like ruling was made in Smalley v. Anderson, 4 T. B. Mon. 367, where the plaintiff charged the defendant with being a liar. If, however, the words charge a felony, or an offense indictable and punishable by fine or imprisonment, though made in general words only, they come within the first head of the classification above given, and are actionable per se. McNamara v. Shannon, 8 Bush, 557; Lemons v. Wells, 78 Ky. 117.

We must therefore first inquire whether the words used are actionable per se, and, if not, does the petition state a case of special injury or damage?

Are the words used in this case actionable per se? It is only when oral charges of dishonesty, rascality, or general depravity are uttered or spoken of a person in his business or employment, or impute to him the commission of a crime, that they are actionable per se. In the early and leading case of Brooker v. Coffin (1809) 5 Johns. 188, 4 Am.Dec. 337, the following rule was given as the test: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable." Cooley says that this test has been accepted and applied so often and so generally that it may now be accepted as settled law. Torts, p. 229. It has been so accepted and acted upon in the repeated decisions of this court.

In Craig v. Pyles, 101 Ky. 593, 39 S.W. 33, 18 Ky. Law Rep. 1043, Peters v. Garth, 50 S.W. 682, 20 Ky. Law Rep. 1934, Feast v. Auer, 90 S.W. 564, 28 Ky. Law Rep. 794, 4 L.R.A. (N. S.) 560, and Schurick v. Kollman, 50 Ind. 336, opprobrious epithets against women, not amounting to charges of unchastity, were held not to be actionable, because they did not come within any one of the heads of the classification of actionable words above given; and, although these rulings might seem strange and harsh, they are nevertheless in conformity with the general line of decisions upon this subject. At common law imputations of unchastity against a female were not actionable per se. This phase of the rule has not, however, passed without a strong protest from some of the courts. Thus, in Landerback v. Moore, decided in 1817 by the Supreme Court of Ohio, and reported in Tappan's Reports, Appendix A, p. 349, Judge McLean said: "It would be difficult for an individual, who had never been initiated into any of the mysteries of the common law, to believe that the same courts, who have so repeatedly sanctioned in their decisions the above principles, have as often decided that the common law gave no redress for words charging a female with incontinence. In all the arena of slanders, there is no shaft more deadly than this; the virtues of female innocence are not proof against its assault; at its touch, every charm is dissolved; every prospect withers. Its destruction is more cruel, and more complete than death. But, as the crime is not punishable at common law, these courts can give no reparation for the injury. Incontinence is punished in England by the spiritual court; to this court must the complainant resort. If the charge be true, she is liable to do penance to the church; therefore the spiritual church takes jurisdiction, and investigates the charge with as much solemnity, and inflicts a punishment on the person falsely charging, perhaps not more severe than if he called the plaintiff a heretic."

In this respect, however, the law has grown along the line adopted by Judge McLean, and in England, since 1891, and in many of the states, including Kentucky, it is now made actionable by statute to impute a want of chastity to a female, and without allegation or proof of special damage; and neither is it necessary that the words should make the charge in express terms. Ky. Stats. § 1 (Russell's St. § 5); Lyons v. Stratton, 102 Ky. 317, 43 S.W. 446, 19 Ky. Law Rep. 1343; Nicholson v. Rust, 52 S.W. 933, 21 Ky. Law Rep. 647; Nicholson v. Dunn, 52 S.W. 935, 21 Ky. Law Rep. 643; Morris v. Curtis, 45 S.W. 86, 20 Ky. Law Rep. 56; Nicholson v. Merritt, 109 Ky. 369, 59 S.W. 25, 22 Ky. Law Rep. 914.

Since this state has, with the above exception, adhered to the general rule of the common law above given, in determining what slanderous words are actionable per se, it would seem to be unnecessary in this case to do more than point out the scope of the rule, and the general application of it in some of the principal cases.

It has been held that it is not actionable per se to say of...