Wooten v. Martin

• Decision Date: 25 November 1910
• Citation: 140 Ky. 781,131 S.W. 783
• Parties: WOOTEN v. MARTIN.
• Court: Kentucky Court of Appeals

131 S.W. 783

140 Ky. 781

WOOTEN v. MARTIN.

Court of Appeals of Kentucky.

November 25, 1910

Appeal from Circuit Court, Lyon County.

Action by Julia Martin against J. B. Wooten. From a judgment for plaintiff, defendant appeals. Reversed and remanded for further proceedings.

Wheeler & Hughes, for appellant.

Newton W. Utley and Greene, Van Winkle & Schoolfield, for appellee.

HOBSON J.

Mrs Julia Martin brought this suit against J. B. Wooten to recover damages for slander. She alleged that she was a milliner in Kutawa, and that he was a dry goods merchant that he falsely and maliciously spoke of her these words "Mrs. Martin took those tickets, and it is not the first time she has done such things." The defendant filed answer controverting the allegations of the petition; a trial was had resulting in a judgment against him for $500, and he appeals. The first question arising in the case is: Are the words actionable per se? In Lemons v. Wells, 78 Ky. 118, the court said: "The general rule is that any words which charge a person with an indictable offense, which is punishable by an infamous or corporal punishment, or which involves moral turpitude, are actionable in themselves." See, also, McNamara v. Shannon 8 Bush (Ky.) 558; Townsend on Slander, § 153.

It is insisted that the words are actionable because they imported a charge of larceny. In Clay v. Barkley, Ky. Dec. 67, the words were: "He killed and salted one of my hogs." It was held that the words were not actionable without special damages on the ground that they did not mean or imply that the hog was feloniously stolen. In Caldwell v. Abbey, Hardin, 529, the words were "that Abbey was a rogue and was guilty of having and concealing the goods of the defendant." It was held that the words did not import any theft or felony or other crime. In Porter v. Hughey, 2 Bibb, 232, the words were: "That Hughey's boys did frequently come to our house and hire our negroes, and take the dogs, and go down into the river bottom, and kill things no more theirs than ours." It was held that the words were not actionable, and they did not carry with them the imputation of a crime. In Brown v. Piner, 6 Bush, 518, the words were: "Jesse Piner sheared Jack Austin's sheep and kept the wool." It was held that the charge did not import a criminal act, and that no recovery could be had. In Curtis v. Iseman, 137 Ky. 796, 127 S.W. 150, the words were: "I'll learn you how to steal a buggy whip." It was held that the words were not per se actionable. A contrary rule was not laid down in Jones v. McDowell, 4 Bibb, 188. That case rests on the ground that the words there used obviously imported a charge of felony, and that the latter part of the words were without meaning unless this was intended. We do not see that this rule can be applied here. The words "Mrs. Martin took those tickets" do not fairly convey the idea that she had stolen the tickets, and the additional words, "it is not the first time she had done such things" add nothing to the sense.

When we look to the evidence we reach the same conclusion. The facts are these: Wooten gave with every purchase of a certain amount a ticket. These tickets were to be voted in awarding a prize piano said to be worth $400, and Mrs. Martin was collecting tickets for her sister. Mrs. Chandler, a friend of hers, went to Wooten's store, and made a purchase which entitled her to two tickets. The clerk who waited on her said she put the tickets in the bundle. Mrs. Chandler took the bundle to Mrs. Martin to give her the tickets, but when they opened it they could not find them. Mrs. Chandler then went back to Wooten's store for the tickets. The clerk insisted that she had put them in the bundle. The proof for the plaintiff is to the effect that Wooten then asked Mrs Chandler who untied the bundle; that she answered, "Mrs. Martin"; and that he...