Thompson v. Adelberg & Breman, Inc.

192 Ky. 843 | Ky. Ct. App. | 1921

Opinion op the Court by

Judge Settle

— Reversing’.

This is the second appeal of this ease. As the opinion of the court on the first appeal (Thompson v. Adelberg & Breman, Inc., 181 Ky. 487) sets forth the material facts alleged in the petition and also the ruling of the circuit court respecting the single question then decided, in order to obtain an understanding of the questions to be determined on the second and present appeal it is deemed sufficient to say that the action was brought by the appellant seeking to recover of the appellee damages for the alleged malicious publication by the latter of a libel concerning her, contained in numerous yellow printed cards posted, in her absence, by its order, in divers conspicuous places on the front of her residence and elsewhere upon her premises, where they easily could be> and were, seen and read by persons from the street in passing her home, and which cards, as alleged, substantially charged that the appellant had inexcusably failed to pay her debts, particularly one, it was claimed, she was owing the appellee.

At the appearance term of the circuit court the appellee filed a general demurrer to the petition, which that court sustained, and, upon the refusal of the plaintiff to amend, this ruling was followed by the entering of a judgment dismissing the petition, which resulted in the first appeal. On that appeal we held that the contents of the cards in question, together with the alleged manner of their use by appellee, made them libelous per se; therefore, that the facts alleged in the petition stated a cause of action; consequently the judgment of the circuit court sustaining the demurrer to the petition and dismissing the action was reversed and the cause remanded to that court for a trial consistent with the opinion.

Following the return of the cause to the trial court the appellee filed an answer to the petition embracing two paragraphs, the first containing a traverse and the second a plea in bar, based upon a judgment of the Kenton circuit court in favor of the appellant against the appellee, rendered in another action between the same parties, but arising, as alleged, out of the same transaction. The appellant demurred to the second paragraph of the answer, which demurrer the court overruled. Excepting to this ruling the appellant filed a reply controverting all affirmative matter appearing in the first paragraph of the answer, and, also, the right of the appellee to rely upon the judgment in bar pleaded in the second paragraph thereof. The appellee demurred to the reply, which the court sustained, and carrying it back to the petition, also sustained it to that pleading, pursuant to which rulings it rendered judgment again dismissing the action. Appellant also excepted to the rulings resulting in this judgment and to the judgment, and from the latter prosecutes the present appeal.

It appears from the record that at the time of, or shortly after, the institution by the appellant of this action against the appellee for the libel complained of, she also instituted against it in the same court an action of trespass guare clausam freget, in which the recovery of damages was sought for the alleged unlawful invasion by appellee, through its authorized collecting agent, of her home and premises and, as further alleged, its malicious acts in causing such agent, after entering the same in appellant’s absence, to temporarily deface the property and annoy her and family by putting in conspicuous places both Ripon her dwelling house and premises printed cards containing libelous matter.

Following completion of the issues by the filing of the necessary pleadings, a trial was had in the action of trespass and a verdict and judgment of one cent in damages awarded the plaintiff, while the first appeal in the libel action was pending in the Court of Appeals, which judgment is the same pleaded by the appellee’s answer in the libel action after its return to the circuit court in bar of a recovery therein, and which the circuit court held constituted such a bar. This ruling of the trial court seems to have been bottomed on the theory that, as. both the libel and trespass complained of grew out of the same transaction or tort, they might have been joined in one and the same action; hence a recovery of damages in an action for either would 'bar a like recovery in a separate action for the other. In thus holding the trial court erred. 'Section 83, Civil Code, declares what causes of action may be joined, and by the positive provisions of subsection 5 of that section all claims, arising from injuries to character constitute a distinct class. So libel and slander may be joined in the same petition, but neither libel nor slander can be joined with trespass to the person or property, real or personal. Hargan v. Purdy, 93 Ky. 424; Fred v. Traylor, 115 Ky. 94; Dragoo v. Levy, 2 Duvall 520; Tandy v. Riley, 26 R. 98. This distinction is well stated in Newman’s Pleading and Practice, section 374, as follows:

“But as claims arising from injuries to the person or property of the plaintiff form a separate and distinct class, libel or slander could not be joined with assault and battery, nor with trespass, on land or personal property, the former being for injuries to character and the latter injuries to the person or property of the plaintiff. ...”

The rule thus declared by the excerpt from Newman, supra, is approved in almost the same language in 23 Cyc. 409. There seems to be but one exception to this rule; a few of the authorities hold that slander and malicious prosecution or false arrest may be joined, where in the paragraph for the malicious prosecution or false arrest injury to the reputation by scandal is alleged. Dragoo v. Levy, 2 Duvall 520; Woods v. Finnell, 13 Bush 628.

Our attention has been called to no authority holding that libel or slander of the plaintiff may be joined in the same action with trespass to his person or properly. The case of Cole’s Admrs. v. Illinois Central Railroad Co., 120 Ky. 686, cited by counsel for appellee, certainly does not so hold. In that case separate actions were brought by the administratrix of a decedent against the railroad company to recover in the one damag’es for the killing of the decedent by its train, and in the other for the destruction of his buggy and killing of his horse in the same accident by the same train. Becovery for the death of the decedent resulted and the defendant after paying the judgment pleaded it as a bar to any recovery in the second action for the destruction of the buggy and death of the horse. .On appeal the plea was sustained, and properly so, because by the express provisions of sec. 83, subsec. 6, of the Code the two causes of action might and should have been joined, hence their segregation made the recovery in one of the actions and its satisfaction a bar to a recovery in the other. The two causes of action not only arose out of the same tort, but both belonged to a class that subsection 6, section 83, supra, expressly authorized to be joined in the one action.

We think it-clear from the authorities, supra, that the ruling of the trial court holding the judgment obtained by appellant against appellee in the action for the trespass to her property a bar to a recovery in this action for the libel is without support from the law; therefore, the judgment of that court is reversed and cause remanded with directions to set it aside, sustain the appellant’s demurrer to the plea in bar contained in the answer, and grant her a trial consistent with the opinion.