163 Ky. 139 | Ky. Ct. App. | 1915
Opinion op the. Court by
Affirming.
The plaintiff, who is. the appellant here, brought suit against the defendant, now appellee, to recover damages for an alleged slander. The defendant is an attorney-at-law, and the petition charged that in the courthouse, while making the opening statement in a case, he falsely and maliciously spoke of and concerning the plaintiff the following words, to-wit:
“In this case the only question is, whether a corporation can get justice in Pike County. No longer than yesterday I heard a case tried in this court of Carl Massy against the Allegheny Coke Company and John Fuller in which the jury turned in a verdict under their oaths against the Allegheny Coke Company and found in favor of John Fuller, which they knew to be wrong. That verdict was a travesty on justice and a shame and a disgrace to the community. ’ ’
And further averred “that defendant meant to and did charge the plaintiff with the crime of perjury; and further meant to charge that he had wilfully and knowingly violated the oath that he had taken to try the issues joined and a true verdict render in said case and had returned a verdict which he knew to be wrong. That said words were spoken in the courthouse and in the presence of the court, the jurors and the bar and a large crowd of people there assembled; that said words were spoken of plaintiff as a jiiror, an officer of the court, and were used to falsely leave the impression on those who heard them that plaintiff was a perjurer and had been false to his trust as an officer of the court; that, by reason of the use of said words by defendant as aforesaid, the plaintiff has suffered great disgrace, humiliation and loss of character and reputation, to his great damage.”
This petition was dismissed on demurrer,' and the plaintiff is here on appeal.
We think it was highly improper for the defendant, as an attorney and officer of the court, to go out of his way and assail in- the manner alleged a jury because they had, in another case in which he was also engaged as an attorney, returned a verdict against his client, and,, considering the place and circumstances under which the words were spoken, it may well be admitted that they were calculated to wound the feelings of the plaintiff and subject him to at least some measure of ridicule and reproach.
The words spoken not being privileged, the remaining question is, are they actionable? On behalf of the appellant it is insisted that they are actionable per se; or, if not, they are actionable because spoken of the appellee in respect to an office.
In Williams v. Riddle, 145 Ky., 459, it is said 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
Adopting this definition of actionable words, we think it is apparent that the words charged must come under the first class or they cannot be treated as actionable. Or, to put it in another way, unless the words spoken impute the commission of a crime involving moral turpitude for which the jurors, including the plaintiff, might be indicted and punished, they do not furnish the basis for a suit for slander, although we are quite sure that if words were spoken generally of a jury or applied to a jury as a whole that did impute to the jury a violation of Section 2256 of the statute or the commission of some crime involving moral turpitude for which the individual members might be indicted and punished, an action would lie by any member of the jury, although no one of them was designated by name in the spoken words. Levert v. Daily States Publishing Co., 123 La., 594, 23 L. R. A. (N. S.), 726; Palmerlee v. Nottage, 119 Minn., 351, 42 L. R. A. (N. S.), 870; Lathrop v. Sundberg, 55 Wash., 144, 25 L. R. A. (N. S.), 381.
The substance of the words spoken is that the jury in the Allegheny Coke Co. case returned a verdict which they knew to be wrong. But these words, however, reprehensible, did not impute to the jury the commission of any offense for which' they might be indicted and punished. So far as we are advised, except in the instance we will presently point out, a juror cannot be subjected to punishment for any decision he may render. He is not answerable to any other tribunal for his finding, and the motives that influenced him cannot be made the subject of a criminal investigation. Bishop’s New Criminal Law, Vol. 1, Sec. 462; 5 Johnson N. Y., 282.
It is, however, provided in Section 2256 of the Kentucky Statutes that “If a juror in any case shall take or agree to take anything, directly or indirectly, to give or refrain from giving his verdict, or shall, from favoritism or corrupt partiality, give or refrain from giving his verdict, and shall be thereof convicted, such juror shall not thereafter serve on any jury and shall be fined one hundred dollars and a sum equal to ten times the amount received or agreed to be received.”
If, therefore, the words spoken had charged this jury with having taken or agreed to take anything, directly or indirectly, to give a verdict, or that its verdict was
But, however this may be, the meaning' of the words spoken cannot, of course, be enlarged by innuendo. Moore v. Johnson, 147 Ky., 584. The words are to be taken in their usual and ordinary acceptation, and so treating them, we do not think they can be construed as either charging perjury or corrupt favoritism or corrupt partiality. If the jury returned a verdict they knew to be wrong, they, of course, committed an offense against the administration of justice and did a wrong to the Allegheny Coke Co. But this wrong they might have done without being guilty of perjury or being influenced by corrupt favoritism or partiality for Massy. And so we think the words spoken are not actionable per se.
It is, however, insisted that, although the words may not be actionable per se, they are actionable because spoken of the appellant in respect to an office, and the attempt, therefore, is made to bring the words within the class that makes it-actionable to impute unfitness to perform the duties of an office or employment. But we think the position of a juror is not an office or employment within the meaning of these words as employed in the quotation from Williams v. Riddle. The words “employment, profession or trade” mean some business, employment, profession or trade in which the complaining
In Byers v. Martin, 2 Colo., 605, 25 Am. Rep., 755, the court held that an action for libel might be maintained by a juror against a newspaper that, in the course of an article commenting on a trial, said: “We are not a little surprised at Judge Wells’ lenient charge in the case. We are still more so at the infamous verdict of this jury. * * * We cannot express the contempt which should be felt for these twelve men, who have thus not only offended public opinion, but have done injustice to their own oaths,” saying that the words were actionable under the statute defining libel, ‘ ‘ as well as upon general principles, as words spoken of one in the execution of his office.”
While not inclined to agree with the conclusion of the court that the words were actionable because written of the juror in connection with his office, their actionable character might safely be put upon the ground that they were libelous as many words that would be sufficient to furnish the basis of an action for libel would not sustain an action for slander.
In Riley v. Lee, 88 Ky., 603, the general rule upon the subject of libelous words is thus stated: “So it may be regarded as thoroughly settled that if the written or printed publication tends to degrade the person about whom it is written or printed — that is, if it tends to reduce his character or reputation in the estimation of his friends or acquaintances or the public, from a higher to a lower grade, or if it tends to disgrace him — that is, if it tends to deprive him of the favor and esteem of his friends or acquaintances or the public, or tends to render
And so if these words had been written and published concerning the jury, we think they would clearly be libelous on the complaint of any of the jury. But spoken words are only actionable per se when ‘ ‘ they 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.” Moore v. Johnson, 147 Ky., 584. And, as we have seen, the words spoken do not come within the scope of this definition, and, therefore, cannot be made the basis of an action for slander.
The judgment is affirmed.