York v. Mims

• Decision Date: 26 February 1918
• Citation: 179 Ky. 525,200 S.W. 918
• Parties: YORK v. MIMS.
• Court: Kentucky Court of Appeals

200 S.W. 918

179 Ky. 525

YORK v. MIMS.

Court of Appeals of Kentucky.

February 26, 1918

Appeal from Circuit Court, Boyd County.

Action by Joshua M. York against Blanch M. Mims. From a judgment dismissing the action, plaintiff appeals. Affirmed.

R. S Dinkle, of Catlettsburg, and H. R. Dysard, of Ashland, for appellant.

George B. Martin, of Catlettsburg, for appellee.

SETTLE C.J.

The question presented for decision by this appeal is whether certain words alleged in the petition to have been maliciously and falsely spoken of the appellant by appellee are slanderous per se and therefore actionable. The words complained of, as set out in the petition, as amended, are contained in two paragraphs, the first being as follows:

"Mr York walked into my office and, without my permission, took from my desk private papers containing a check for $55.00, my own private papers, and if he does not send them back to me I will take a warrant for him."

The words of the second paragraph are as follows:

"Mr. York walked into my office and took from my private papers a certain check for $55.00, and walked out without saying a word to me about it, and I consider it just as good as stealing it, and I do not want anything to do with such a man, as I have had dealings with him before and he is tricky."

A general demurrer was interposed to the petition, as amended, which the circuit court sustained; and, the appellant declining to plead further, judgment was entered dismissing the action, at his cost. From which judgment this appeal is prosecuted.

The petition does not allege that appellant was damaged by appellee's speaking of him the words charged, and for this reason alone it is insisted for appellee that the action of the lower court in the matter of sustaining the demurrer was authorized. But, waiving this defect in the petition, we find it preferable to rest our decision of the case upon the surer ground that the words complained of are not slanderous per se, and consequently not actionable.

Words that clearly and unequivocally import that the person accused is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment are actionable per se. But words that, in their usual and ordinary meaning, as commonly understood, do not clearly import the commission of a punishable crime involving moral turpitude are not actionable per se. It is likewise true that words falsely and maliciously spoken, although not per se actionable, concerning the business, office, or profession of another if they import dishonesty or unfitness or incompetency, may give a cause of action to recover special damages for an injury thereby caused the plaintiff in his business, trade, or calling; but to make such words actionable the special damages must be pleaded, and also the extrinsic facts and circumstances relied on to impart to them the qualities necessary to render them actionable. Moore v. Johnson, 147 Ky. 585, 144 S.W. 765; Wooten v. Martin, 140 Ky. 781, 131 S.W. 783, Ann. Cas. 1912B, 407; Williams v. Riddle, 145 Ky. 459, 140 S.W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151; Renaker v. Gregg, 147 Ky. 368, 144 S.W. 89; Curtis v. Iseman, 137 Ky. 796, 127 S.W. 150.

The language here complained of contains no charge that appellant stole the check or any other...