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DIETZMAN, J.: The appellant brought | action for slander. It was so held in Spears this action against the appellees charging v. McCoy, 155 Ky. 1, 159 S. W. 610, 49 L. R. them with having uttered falsely, malicious. A. (N. S.) 1033. Appellant also introduced ly, wantonly, and wickedly certain slanderous a lot of proof to show that the statements words of and concerning him with intent so made were false and without foundation pursuant to common purpose and concert of in fact. On this showing, appellant insists action to injure, defame, and destroy him that he was entitled to have his case submitboth personally and professionally. The an- ted to the jury at least in the absence of any swer of the appellees was a traverse and contrary proof. plea of privilege. At the close of appellant's [2, 3] We are informed in the brief for approof, the court peremptorily instructed the pellees that the court based his peremptory jury to find for the appellees and, from the instruction on the theory that the statements judgment entered on that verdict, appellant made by appellees were prima facie priviappeals. The sole question we have before leged, and that since the presumption of us is whether or not appellant, on the evi- malice arising from a slanderous statement dence introduced, was entitled to have his per se is rebutted when the statement is case submitted to the jury. From the plead- made under conditions showing prima facie ings and proof, it appears that the appellant privilege, the burden is then on the plaintiff was a teacher in the colored high school of to show actual malice in order to defeat the Princeton, as well as its principal, and that defense of privilege, which burden appellant he also assisted in supervising the colored failed to carry in this case. "If a communischools of Caldwell county. In the fall of cation is made in good faith, without actual 1922, a bitter campaign was waged for the malice, with reasonable or probable grounds offices of trustees of the colored schools at for believing them to be true, upon a subPrinceton, in which campaign the conduct of ject-matter in which the author of the comappellant seems to have been an issue. Those munication has an interest or in reference who opposed appellant were elected.

to which he has a duty, public, personal, or In April, 1923, appellees, together with private, either legal, judicial, political, moral, others, organized a Parent-Teachers' Associa- or social, and to a person having a corretion of the colored schools in question. It sponding interest or duty," such communiseems that some years prior to this time ap-cation is qualifiedly privileged. 36 C. J. pellant had organized an association which 1241. If the conditions which give rise to he called the "Mothers' Club," and of which the qualified privilege fail, then the privi. he was a member, but this club seems to lege falls. In this case that the occasion on have functioned only at graduating time, and which the words complained of were spoken for the purpose of co-operating in these ex- was one giving rise to a qualified privilege, ercises. The evidence indicates that the Par- we think clear, and in truth appellee does not ent-Teachers' Association, started in April, seriously contest this point. 1923, was organized mainly for the purpose [4] It is a fact judicially known that Parof looking into the conduct of appellant, es- ent-Teachers' Associations are organized for pecially with reference to his relations with the purpose of bringing the school-teachers the older girls of his school. At the organi- and the parents into closer co-operation, and zation meeting, nothing was said or done for the purpose of discussing the problems of which appellant complains in this suit, of the school and its welfare. Hence teachexcept that some of his supporters, who wish- ers and parents are encouraged at such meeted to speak in his behalf, were not permitings to bring forward for discussion anything ted so to do, the chairman of the meeting that will advance the interests of the school. seeming to have the idea that they had come Appellant was the principal of the school in "to bury Caesar, not to praise him."

question, and if rumors were abroad con[1] At an adjourned meeting of this associ- cerning his conduct and morality and fitness ation held some 10 days thereafter, and to teach young girls, it was entirely proper which was largely attended by the parents that the same should be discussed at a meetof the pupils, who attended the school of ing of an organization of this kind. Under which appellant was principal, the appellees such circumstances, a discussion of a teachin this case minced no words and made di-er's conduct and moral fitness, if made in rect accusations concerning the morality of good faith, and without actual malice, and the appellant, and especially concerning his with reasonable or probable grounds for beattitude towards and conduct with the older lieving them to be true, would be privileged, girls of his school, particularly Ethel Mur- since it would be upon a subject-matter in ray. There can be no question but that which the members of such an association prima facie these remarks were slanderous would have a vital public, moral, and social per se, since they tended to show appellant's interest as it involves their children. unfitness and to discredit his standing in his [5] Although the law presumes malice, profession of a teacher, and being slanderous where the publication is libelous or slanderper se, it was not necessary to allege or ous per se, yet if the publication be made unprove special damage in order to sustain this der circumstances which disclose a qualified

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(273 S.W.) privilege, it is relieved of the presumption of qualified and competent, judgment appointing malice, and the burden is then on the plain three additional trustees, other than those namtiff to prove actual malice. If the plaintiff ed in petition, was an arbitrary exercise by sustains this burden, then the privilege is court of powers vested by will in parties not

before it, and such judgment was absolutely no longer existent. In Democrat Pub. Co.

void. v. Harvey, 181 Ky. 730, 205 S. W. 908, this court said:

2. Action en 16—Ex parte proceeding presup

poses right in petitioners to which there is no "Ordinarily where a publication is libelous

adverse party. per se, the law presumes malice and this pre

An ex parte proceeding necessarily presumption continues throughout the entire case


supposes a right to petitioner to which there is until overcome by competent evidence.

no adverse party. v. Sun Publication Co., 158 Ky. 727, 166 S. W. 245. If, however, the publication be qualifiedly 3. Courts Om 26—Cannot exercise their juris. privileged, this relieves the publication from diction except in judicial proceeding. the presumption of malice otherwise attend

A court cannot exercise its jurisdiction and ant, and puts upon the plaintiff the burden of powers except in a judicial proceeding. proving malice. Tanner v. Stevenson, 138 Ky. 578, S. W. 878, 30 L. R. A. (N. S.) 200; 4. Action en 20—Only where specific remedy McClintock v. McClure, 171 Ky. 720, 188 S. W. provided by statute that rights can be en867, but inasmuch as malice may be inferred forced other than by civil action, from the falsity of the statements contained in It is only where specific remedy is provided the publication, the burden of proving malice by statute that rights can be enforced othermay be met by showing such falsity, and where, wise than by civil action. as in this case, the evidence on the question of falsity is conflicting, the question of malice is 5. Action w20—"Ex parte proceeding" not

necessarily a special proceeding, but often a for the jury. Evening Post Co. v Richardson,

civil action. 113 Ky. 641, 68 S. W. 665. In other words, where there is a plea of qualified privilege, the

An "ex parte proceeding” is not necessarily presumption of malice does not arise from the a special proceeding, but often is a civil action, publication itself but from the falsity of the in which all interested parties join as plaintiffs, publication and the burden of showing its fal- and where, in addition to their consent, judisity, where there is no attack upon the plain- cial action is required. tiff's moral character, is upon the plaintiff.

6. Action 20—Ex parte petition by trust Evening Post Co. v. Richardson, supra; Vance

beneficiaries, to have additional trustees apv. Louisville Courier-Journal Co. (95 Ky. 41,

pointed, without making existing trustees par23 S. W. 591].”

ties, held neither "special proceeding” nor a

“civil action.” (6, 7] In this case, appellant introduced a great deal of proof to show that the charg- trust, seeking appointment of additional trus

Ex parte petition by beneficiaries under es appellees made against him, were false. tees,' existing trustees not being made parties Save by some inferences, there was no con

to proceeding, is neither a “special proceedtrary proof. Malice may be inferred from ing' nor a "civil action,” within Code definithe fact of such falsity. It follows that the tions. appellant did meet the burden thrown upon [Ed. Note.-For other definitions, see Words him of showing actual malice and, having and Phrases, First and Second Series, Civil done this, he has destroyed, at least until it Action-Case-Suit-etc.; Special Proceeding.) be restored by other proof, the defense of 7. Appeal and error em 238(6)—Appeal from privilege. Therefore on the showing made

void judgment dismissed, where appellant did so far in this case, appellant was entitled to not enter motion in lower court to set it have it submitted to the jury.

aside. Judgment reversed for proceeding consist

Where judgment is absolutely void, and apent with this opinion.

pellants did not, as required by Civ. Code Prac. $ 763, enter motion in lower court to set it aside, an appeal, on motion by appellees, made in due time, must be dismissed.

JANIN et al. v. LOGAN et al.

Appeal from Circuit Court, Edmonson


June 19, (Court of Appeals of Kentucky. 1925.)

Petition by Violet Blair Janin and others,

beneficiaries under a trust, seeking appoint1. Trusts 160(3)-Judgment appointing ad

ditional trustees in ex parte proceeding, with ment of three named persons as trustees. out existing trustees being parties, held ab- From judgment declining to appoint named solutely void.

persons, but appointing John A. Logan and Beneficiaries of a trust could not, by an others as trustees, petitioners appeal. Disex parte petition, and without making trustees missed. parties, confer on court of equity jurisdiction to divest trustees of powers conferred on them

Frank M. Drake, Boyce Watkins, Bruce, by will, and appoint additional trustees, and, Bullitt, Gordon & Laurent, and Wm. Marwhere existing trustees were alleged to be shall Bullitt, all of Louisville, for appellants.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Thomas, Thomas & Logan and Rodes & equally clear that they were necessary parHarlin, all of Bowling Green, for appellees. ties, since plainly the beneficiaries of a trust

cannot confer upon a court of equity jurisCLARKE, J. By his will, probated in 1849, diction to divest trustees of powers conferred John Croghan devised a large tract of land, upon them by the instrument creating the upon which Mammoth Cave is situated, to trust, by their ex parte petition, or without three named trustees, to be managed by them making the trustees parties to the proceedand their successors for the use and benefit ing, and giving them an opportunity to be of his nine nieces and nephews and their heard. An ex parte proceeding necessarily heirs, until the death of the last surviving presupposes a right in the petitioners to niece or nephew. The named trustees, or which there is no adverse party. such as might act, are empowered by the will The will filed with the petition makes it to fill vacancies “by deed or will,” and new clear that the beneficiaries are without trustees so appointed are given "all the pow- right to name new trustees, and they could er vested in the trustees hereby appointed.” not therefore confer that power upon the At the expiration of the trust period, the court by their ex parte petition, or except in trustees are empowered and directed to sell an action against the trustees in whom such the property and divide the proceeds among power is vested. the heirs of the nieces and nephews of the We therefore have here more than a mere testator, per stirpes.

defect of parties, since there is a total abOn June 18, 1924, the beneficiaries, eleven sence of the parties whose rights and powers in number, filed an ex parte petition in the are sought to be employed. There is no stateEdmonson circuit court, seeking the appointment of any cause of action, ex parte or othment of three named persons as trustees, to erwise, or of any facts giving the court jurisact in conjunction with the two existing diction of either the subject-matter sought trustees A. C. Janin and W. E. Wyatt. Two to be determined or of the parties whose days later, and with only the petition and a rights are involved. There was therefore copy of the will filed therewith as authority nothing whatever before the court to call infor any action upon his part, the chancellor to action its general jurisdiction or powers declined to appoint the named persons, but over trustees and in trust affairs. appointed the three appellees as trustees,

[3] A court cannot, of course, exercise its over the objection and exceptions of the pe- jurisdiction and powers except in a judicial titioners, and they have appealed.

proceeding. Our Code divides all civil cases One of the existing trustees, Mr. Wyatt, into “actions” and “special proceedings.” It joined in the petition simply as a beneficiary defines a civil action to be “a demand by and not as a trustee, and Mr. Janin, the pleadings in a court of justice for the enother trustee, was not a party thereto. More- forcement of an alleged right of a plaintiff over, there is no allegation in the petition against a defendant,” and declares that every that the existing trustees have abused or re- other civil case “is a special proceeding.” fused to exercise the powers vested in them

[4] It is only in cases where a specific remby the will, or that they have been remiss in edy is provided by statute, that rights can be any way in the management of the estate enforced otherwise than by civil action. Gay entrusted to their care. Upon the other hand, v. Morgan, 4 Bush, 606; Stephens v. Miller, the petition alleges that these two trustees, 80 Ky. 47; Kinney v. O'Bannon, 6 Bush, 692; whose right and ability to act is not ques. Combs v. Commonwealth, 71 S. W. 504, 24 tioned, have been acting since 1872, and that Ky. Law Rep. 1310. during all of that time the affairs of the es

[5] An ex parte proceeding is not necestate “have been managed in a proper and sarily a special proceeding, but more often suitable way, and that the various heirs and is a civil action in which all interested parinterested parties have received the income ties join as plaintiffs, and where, in addition from the estate as vided under the terms

to their consent, judicial action is required. of the will."

. [6] This clearly is not a special proceeding, The only ground stated in the petition for since not specially authorized by statute or interference by the court in the matter is the will. Nor is it a civil action either, as that “it is desirable that three additional defined by the Code or at common law, betrustees be appointed, that these three addi- cause of the absence, either as plaintiffs or tional trustees be selected from the various defendants, of the parties whose adverse groups of heirs, and your petitioners recom- rights are involved and sought to be abridged, mend and suggest the appointment of" three if not denied. As said in City of Covington, named parties, who are alleged to be “suita- Ex parte, 176 Ky. 140, 195 S. W. 439: ble and proper persons, well qualified and

"At common law it was essential to a jucompetent to perform the duties of trustee of

dicial determination that there be three perthis estate."

sons, the actor, the reus and the judex. With[1, 2] That no cause of action was stated out both of the first two there can be no conagainst the trustees, if they had been made test nor any opposition to any of the wishes parties defendant, is at once apparent. It is of the actor."


) The petition seeks only the appointment / relieve decedent from any duty to look out for of named parties as trustees, and contains or protect himself from such obstruction. no prayer for general relief of any kind. The

4. Trial em 296(3)-Instruction making it abjudgment entered on that petition, without

solute duty of mine owner to maintain roof responsive pleading or proof, denies the only

free from hanging slate held erroneous, relief sought, and is neither responsive to the

though other instruction properly defining petition nor supported by pleading or proof. duty. It is then in substance and effect, but an In action for death of miner, instruction arbitrary exercise by the court, on its own making it absolute duty of defendant to mainmotion, of powers vested by will in parties tain roof free from hanging slate held prejudinot before the court.

cial error, though another instruction properly A court of equity might as well attempt to told jury it was duty of defendant to exercise

ordinary care to maintain roof in reasonably appoint a committee to take charge of a

safe condition. man's property upon the ex parte petition of his wife and children, alleging simply that 5. Witnesses mw 379(3)-Exclusion of written he had managed his affairs properly for more statement inconsistent with testimony, though than 50 years, but they deemed it desirable merely expressing opinion, held error. to have another or others appointed in his Where witness testified that there was stead, or to share his responsibility. That hanging slate at place where plaintiff's intestate the judgment herein is not merely voidable was killed, but prior to trial he had signed but absolutely void, seems to us too obvious statement that it was his honest opinion that

deceased was hurt because he raised himself to admit of argument.

too high while riding in bank car, such state[7] As the judgment is void, and appel- ment, though merely expressing an opinion, belants did not enter a motion in the lower ing inconsistent with his testimony, was compecourt to set it aside, as is required by section tent to destroy or weaken latter and exclusion 763 of the Civil Code, before an appeal will thereof was error. lie to reverse it, and as appellees, in due

6. Master and servant Omw 291 (8)-Instruction time, made a motion to dismiss the appeal,

on willful misconduct of miner held properly it must be and is dismissed.


Where miner at time of his death was riding in a bank car, which company furnished to carry miners to their places of work, an in

struction on willful misconduct was properly ROCKPORT COAL CO. v. BARNARD.

denied, but even if he violated company's rule SAME V. ADAMS.

such violation is contributory negligence and

not willful misconduct. (Court of Appeals of Kentucky. June 19, 1925.)

7. Evidence C 481 (2)-Expressions of opin

ion, as to danger of riding on front of bank 1. Trial em 250 - Instruction on employee's car with driver, inadmissible. duty of inspection held improper, where no

In action for death of miner while riding question thereof either in pleadings or evi

on a bank car taking him to his place of work, dence.

mere expressions of opinions of witnesses, as In action for death of miner, where there to danger of riding on front of car with driver, was no question, either in pleadings or evi

are inadmissible. dence, involving duty of inspection on part of decedent, instruction that decedent was under | 8. Master and servant Ew356—Willful misconno duty to inspect or repair roof was improper. duct of fellow servant not bar to recovery. 2. Master and servant 293(14)-Instruction

Fact that fellow servant, by his own willheld erroneous, as imposing absolute duty on

ful misconduct, brought injuries to himself and employer to maintain mine roof free from consequent injury to plaintiff employee does hanging slate.

not bar plaintiff's recovery therefor; fellow Instruction, that deceased miner, injured by fense, where employer failed to elect to operate

servant doctrine not being available as a decontact with roof, was under no duty to in- under Workmen's Compensation Act. spect roof, and had a right to assume employer would maintain it free from hanging slate, held erroneous, as making it absolute duty of em

Appeal from Circuit Court, Ohio County. ployer to maintain roof free from hanging Separate actions, tried together, by Ida H. slate; employer being required to exercise only Barnard, administratrix, etc., and by L. A. ordinary care to maintain roof in reasonably Adams against the Rockport Coal Company. safe condition.

Judgment for plaintiff in each case, and de3. Master and servant am 296(4)- Instruction fendant appeals. Reversed, with directions,

held objectionable as relieving miner from in first case, and affirmed in second case.
any duty of care.
Instruction, that deceased miner had right

Barnes & Smith and J. S. Glenn, all of to assume that employer would maintain roof

Hartford, for appellant. free from hanging slate, was objectionable, in

Woodward & Kirk, of Hartford, for appelthat it might have been understood by jury to | lees.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TURNER, C. Appellant operates a coal / ed to place themselves in or upon it for the mine, known as a shaft mine; the bottom is trip, Barnard turning his mule loose in the something over 100 feet below the surface. entry and getting on the front end of the Its employees are taken into the mine by an car with the driver. Barnard and the drivelevator, and when they reach the bottom er faced the way the mule was going, while they are taken to their several places of the two on the rear of the car faced backwork in bank cars drawn by mules. These ward, and the five on each side of the car cars go along the track in the main entry within the body sat facing each other. until the workmen reach their respective The roof in the main entry was about 48 places of work in the cross entries or rooms, inches above the rails of the track, but at or get near to them.

places it was considerably higher because of In transporting the coal from the rooms fallen slate. The workmen carried carbide and through the side entries to the main en- lamps in their caps, but when riding in the try mules are used in drawing the cars, but car either removed or dimmed them because when they reach the main entry they are of their close proximity to each other while taken by a motor propelled by electricity so riding. While thus riding it was necesand taken out. So that along the main en- sary for all the occupants to sit in a stooped try there is erected a wire for the transmis- position to avoid coming in contact with the sion of this power.

The electricity, how-roof, as there was a space of only 13 inches ever, is not turned on in that entry until 7 between the top of the car and the roof at o'clock in the morning, at which time the certain places. workmen are all supposed to be in their When the car started, Barnard was sitting places of work, and it is turned off in the in front on the right of the driver, and Adafternoon before they are supposed to stop ams sitting in the body of the car just betheir work. The bank cars are collected at hind him, and all of the occupants as they or near the bottom of the shaft in the morn- proceeded were in a stooped position. When ing, so that the drivers may attach to them they had gone some distance into the main their mules and carry the workmen through entry Barnard's head came in contact with the main entry in the mule-drawn cars be- the roof or some obstacle, and he was fore the electricity is turned on.

knocked backward on the shoulders and Barnard was the driver of a bank car, back of Adams, who was sitting immediateand Adams was a coal loader. When Bar- ly behind him, and before the car could be nard reached the bottom on the morning of stopped it had gone some 12 or 15 feet, and January 9, 1920, there was left only one car during that time Barnard's body available for the transportation of the re- crushed and scraped against the roof, being maining workmen to their places of work, between it and the body of Adams and other and that car had then already been appro- occupants of the car, the witnesses referring priated by another who had hitched his mule to it as being "roofed.” Barnard died the to it, and this left no car to which Barnard next day from his injuries, and Adams remight attach his mule. The other cars had ceived some injury, and these two suits reall left with their loads of workmen, and, sulted. They were tried together in the cirincluding the 2 drivers, there were 14 work- cuit court, and a verdict of $15,000 returned men left. The trolley wire in the main en- for Barnard's estate, and $500 in the Adams try was attached to hangers which were in case. The appeals are from both judgments, turn attached to the roof, and ran approxi- but on the same record. mately one foot to the right of the right- In the Barnard Case the negligence alhand rail going in, and near the rib or wall leged is that defendant so negligently manon that side.

aged, maintained, and operated its mine and The bank cars were 9 feet in length, 2 the entries and equipment therein that Barfeet, 11 inches wide at the bottom of the nard was hurled with great force against a bed, but had a 9-inch flange on each side piece of slate, or other hard substance prosloping upward, so that the car was 4 feet jecting from the roof or side of the main in width at the top, and was 2 feet deep at entry, causing his injuries as stated. There the front end, and 17 inches at the rear. was no allegation in the petition, however, i The top of the car was 2 feet and 11 inches that the company was operating under, or from the top of the rail. There was a bump- entitled to operate under, the Workmen's er on the rear end of the car where two Compensation Act. The answer is a general men sometimes rode. Those riding inside of denial, and in separate paragraphs pleas of the car sat or rested upon the sloping flang- contributory negligence, assumption of risk, es on each side, and faced those riding on and a willful violation of the rules by Barthe other side. There was a place on the nard resulting in his death, were relied front of the car for the driver to sit, and upon. sometimes another sat in front with him. The plaintiff filed demurrers to each of The driver sat on the left side of the front the three last-named paragraphs, and disend, and such other on the right side. There closed therein for the first time that defendbeing only one car left, the 14 men proceed- ant was entitled to operate under the provi.


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