164 Ky. 634 | Ky. Ct. App. | 1915
Opinion op the Court by
-Affirming.
Minnie Wilkins, by ber father as next friend, sued the appellant and recovered a $2,000 verdict against him for slander. It was alleged that the appellant falsely and maliciously spoke of and concerning her in the presence and hearing of divers persons certain slanderous words — unnecessary and too vulgar to copy here, but “thereby meaning that Minnie Wilkins had committed the crime of fornication and was a lewd woman.”
The defendant answered and admitted he ‘ ‘ spoke the substance or meaning of the words alleged in the petition and that the effect of the same was that plaintiff had been guilty of the crime of fornication, though defendant denies he used the very terms as alleged or that said words were false or malicious.”
By a second paragraph the defendant plead in mitigation that he did not originate the charge, but, without malice, merely repeated a rumor of common currency in the neighborhood to the effect that the plaintiff had been “unduly intimate with men and boys.”
By the third paragraph he plead the truth of the rumor, as follows:
“He alleges that said rumor, that plaintiff had been guilty of fornication, and defendant repeating of the same, and the substance of the charge in the petition to the same effect, was and is true.”
As already stated, the jury returned a verdict for plaintiff in the sum of $2,000, and the defendant appeals from the judgment rendered thereon, and urges two grounds for reversal. First, the verdict was excessive, and, second, because of errors in instructions Nos. 1 and 2.
At the time of the trial, the plaintiff was 17 years old, and the circumstances detailed in the testimony, and which defendant says gave rise to the rumor upon which he based his charge, occurred about two years before the trial, and during a term of the public school which the plaintiff and many of the witnesses were attending. Defendant introduced three school girls to testify in Ms
The jury were told by the first instruction:
“It is admitted that the defendant, Warren Compton, spoke of the defendant, Minnie Wilkins, the words set forth in the petition, to-wit: (The words were then set forth), or substantially those words; now if the jury believe from the evidence that the same was untrue or, falsely spoken of the plaintiff by defendant, they will find for the plaintiff such damages as they may believe from the evidence said Minnie Wilkins may have sustained in her reputation, not to exceed the sum of $5,000.” ■
This instruction further authorized the jury in their discretion, to find punitive damages against the defendant if they believed he spoke the words maliciously.
Complaint is made of the court for failing to say to the jury of the words spoken, “thereby meaning that Minnie Wilkins had committed the crime of fornication.”
Instruction No. 2 is as follows:
“If the jury believe from the evidence that the words spoken by defendant, as set out in the foregoing instruction, or in substance those words, were at the time they were spoken true, and that the said Minnie Wilkins had theretofore been guilty of fornication, they will find for the defendant.”
Appellant complains that before the jury could find for him under this instruction they were required to believe, not only that Minnie Wilkins had been guilty of fornication, but that she was a nuisance in the neighborhood, and that as many as three men would testify that she was the worst woman in the country, and that a great many boys had intercourse with her. It is inconceivable that the jury could have been misled or the defendant prejudiced by this instruction. There was but one issue and that was the truth of the charge of fornication. The ease was practiced on that theory. Plaintiff’s evidence went to acquit, and his to convict her of that offense. The proof of fornication tended to establish the truth of all the other statements, and the jury could not believe one without believing the other. In other words, the meaning of all the language was that plaintiff had been guilty of fornication. The petition so charged, and this was admitted by the answer and appellant’s brief. It follows that appellant was not prejudiced by the fact that before the jury could find for him they were required to believe a number of things, when it is admitted that all the things amount to one and the same thing.
Appellant does not meet the proposition fairly by saying that in the absence of proof, and in the face of his denial, the court erroneously told the jury that the use of these words was admitted. We have already quoted from the answer where defendant admits that he spoke “the substance or the meaning of the words alleged * * * though he denies he used the very terms as alleged.” He made no effort to show what were the “very terms” that he spoke of her, nor did he say which
Neither do we believe there is merit in the complaint as to the instruction on the measure of damages. Appellee is more entitled to complain on this score. The jury were told that if they believed the charges were untrue they should find for the plaintiff such sum in damages as they believed from the evidence she “may have sustained in her reputation.” The instruction should have also authorized recovery for mental distress and humiliation caused by the slander. Appellant complains that the qualifying phrase “if any” is not used after the word “reputation.” There was no need of a qualifying phrase as to her reputation if the charges were untrue. In that case, her reputation was good before the false words .were spoken and the law will presume she sustained some damages. The court did limit recovery to the amount of damage she may have sustained in her reputation.
Perceiving no error prejudicial to the appellant, the judgment is affirmed.
