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so made were false and without foundation in fact. On this, showing, appellant insists that he was entitled to have his case submitted to the jury at least in the absence of any contrary proof.

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 pursuant to common purpose and concert of action to injure, defame, and destroy him both personally and professionally. The answer of the appellees was a traverse and plea of privilege. At the close of appellant's proof, the court peremptorily instructed the jury to find for the appellees and, from the judgment entered on that verdict, appellant appeals. The sole question we have before us is whether or not appellant, on the evidence introduced, was entitled to have his case submitted to the jury. From the pleadings and proof, it appears that the appellant was a teacher in the colored high school of Princeton, as well as its principal, and that he also assisted in supervising the colored schools of Caldwell county. In the fall of 1922, a bitter campaign was waged for the offices of trustees of the colored schools at Princeton, in which campaign the conduct of appellant seems to have been an issue. Those who opposed appellant were elected.

[2, 3] We are informed in the brief for appellees that the court based his peremptory instruction on the theory that the statements made by appellees were prima facie privileged, and that since the presumption of malice arising from a slanderous statement per se is rebutted when the statement is made under conditions showing prima facie privilege, the burden is then on the plaintiff to show actual malice in order to defeat the defense of privilege, which burden appellant failed to carry in this case. "If a communication is made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, upon a subject-matter in which the author of the communication has an interest or in reference to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, and to a person having a corresponding interest or duty," such communication is qualifiedly privileged. 36 C. J. 1241. If the conditions which give rise to the qualified privilege fail, then the privi lege falls. In this case that the occasion on which the words complained of were spoken was one giving rise to a qualified privilege, we think clear, and in truth appellee does not seriously contest this point.

In April, 1923, appellees, together with others, organized a Parent-Teachers' Association of the colored schools in question. It seems that some years prior to this time appellant had organized an association which he called the "Mothers' Club," and of which he was a member, but this club seems to have functioned only at graduating time, and for the purpose of co-operating in these exercises. The evidence indicates that the Parent-Teachers' Association, started in April, 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 permit-ings to bring forward for discussion anything ted so to do, the chairman of the meeting seeming to have the idea that they had come "to bury Caesar, not to praise him."

that will advance the interests of the school. Appellant was the principal of the school in 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 attitude towards and conduct with the older girls of his school, particularly Ethel Murray. There can be no question but that prima facie these remarks were slanderous per se, since they tended to show appellant's unfitness and to discredit his standing in his profession of a teacher, and being slanderous per se, it was not necessary to allege or

with reasonable or probable grounds for believing them to be true, would be privileged, since it would be upon a subject-matter in which the members of such an association would have a vital public, moral, and social interest as it involves their children.

[5] Although the law presumes malice, where the publication is libelous or slanderous per se, yet if the publication be made un

(273 S.W.)

privilege, it is relieved of the presumption of malice, and the burden is then on the plaintiff to prove actual malice. If the plaintiff sustains this burden, then the privilege is no longer existent. In Democrat Pub. Co. v. Harvey, 181 Ky. 730, 205 S. W. 908, this court said:

"Ordinarily where a publication is libelous per se, the law presumes malice and this presumption continues throughout the entire case until overcome by competent evidence. Reid v. Sun Publication Co., 158 Ky. 727, 166 S. W. 245. If, however, the publication be qualifiedly privileged, this relieves the publication from the presumption of malice otherwise attendant, and puts upon the plaintiff the burden of proving malice. Tanner v. Stevenson, 138 Ky. 578, 128 S. W. 878, 30 L. R. A. (N. S.) 200; McClintock v. McClure, 171 Ky. 720, 188 S. W. 867, but inasmuch as malice may be inferred from the falsity of the statements contained in the publication, the burden of proving malice may be met by showing such falsity, and where, as in this case, the evidence on the question of falsity is conflicting, the question of malice is for the jury. Evening Post Co. v Richardson, 113 Ky. 641, 68 S. W. 665. In other words, where there is a plea of qualified privilege, the presumption of malice does not arise from the publication itself but from the falsity of the publication and the burden of showing its falsity, where there is no attack upon the plaintiff's moral character, is upon the plaintiff. Evening Post Co. v. Richardson, supra; Vance v. Louisville Courier-Journal Co. [95 Ky. 41, 23 S. W. 591]."

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2. Action 16-Ex parte proceeding presupposes right in petitioners to which there is no adverse party.

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An ex parte proceeding necessarily presupposes a right to petitioner to which there is no adverse party.

3. Courts 26-Cannot exercise their jurisdiction except in judicial proceeding.

A court cannot exercise its jurisdiction and powers except in a judicial proceeding.

4. Action 20-Only where specific remedy provided by statute that rights can be enforced other than by civil action.

It is only where specific remedy is provided by statute that rights can be enforced otherwise than by civil action.

5. Action 20-"Ex parte proceeding" not necessarily a special proceeding, but often a civil action.

An "ex parte proceeding" is not necessarily a special proceeding, but often is a civil action, in which all interested parties join as plaintiffs, and where, in addition to their consent, judicial action is required.

6. Action

20-Ex parte petition by trust beneficiaries, to have additional trustees appointed, without making existing trustees parties, held neither "special proceeding" nor a "civil action."

Ex parte petition by beneficiaries under trust, seeking appointment of additional trustees, existing trustees not being made parties to proceeding, is neither a "special proceeding" nor a "civil action," within Code definitions.

[6, 7] In this case, appellant introduced a great deal of proof to show that the charges appellees made against him, were false. Save by some inferences, there was no contrary proof. Malice may be inferred from the fact of such falsity. It follows that the 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 privilege. Therefore on the showing made so far in this case, appellant was entitled to have it submitted to the jury.

Judgment reversed for proceeding consistent with this opinion.

JANIN et al. v. LOGAN et al. (Court of Appeals of Kentucky.

1925.)

June 19,

1. Trusts ›160 (3)—Judgment appointing additional trustees in ex parte proceeding, without existing trustees being parties, held absolutely void.

Beneficiaries of a trust could not, by an ex parte petition, and without making trustees parties, confer on court of equity jurisdiction to divest trustees of powers conferred on them by will, and appoint additional trustees, and, where existing trustees were alleged to be

7. Appeal and error 238 (6)—Appeal from void judgment dismissed, where appellant did not enter motion in lower court to set it aside.

Where judgment is absolutely void, and appellants 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.

Appeal from Circuit Court, Edmonson County.

Petition by Violet Blair Janin and others, beneficiaries under a trust, seeking appointment of three named persons as trustees. From judgment declining to appoint named persons, but appointing John A. Logan and others as trustees, petitioners appeal. Dismissed.

Frank M. Drake, Boyce Watkins, Bruce, Bullitt, Gordon & Laurent, and Wm. Marshall 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 & Harlin, all of Bowling Green, for appellees.

equally clear that they were necessary parties, since plainly the beneficiaries of a trust cannot confer upon a court of equity jurisdiction to divest trustees of powers conferred upon them by the instrument creating the trust, by their ex parte petition, or without making the trustees parties to the proceeding, and giving them an opportunity to be heard. An ex parte proceeding necessarily presupposes a right in the petitioners to which there is no adverse party.

CLARKE, J. By his will, probated in 1849, John Croghan devised a large tract of land, upon which Mammoth Cave is situated, to three named trustees, to be managed by them and their successors for the use and benefit of his nine nieces and nephews and their heirs, until the death of the last surviving niece or nephew. The named trustees, or 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 testator, per stirpes.

On June 18, 1924, the beneficiaries, eleven in number, filed an ex parte petition in the Edmonson circuit court, seeking the appointment of three named persons as trustees, to act in conjunction with the two existing trustees A. C. Janin and W. E. Wyatt. Two days later, and with only the petition and a copy of the will filed therewith as authority for any action upon his part, the chancellor declined to appoint the named persons, but appointed the three appellees as trustees, over the objection and exceptions of the petitioners, and they have appealed.

We therefore have here more than a mere defect of parties, since there is a total absence of the parties whose rights and powers are sought to be employed. There is no statement of any cause of action, ex parte or otherwise, or of any facts giving the court jurisdiction of either the subject-matter sought to be determined or of the parties whose rights are involved. There was therefore nothing whatever before the court to call into action its general jurisdiction or powers over trustees and in trust affairs.

against a defendant," and declares that every other civil case "is a special proceeding."

[3] A court cannot, of course, exercise its jurisdiction and powers except in a judicial 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 that the existing trustees have abused or refused to exercise the powers vested in them by the will, or that they have been remiss in any way in the management of the estate entrusted to their care. Upon the other hand, the petition alleges that these two trustees, whose right and ability to act is not questioned, have been acting since 1872, and that during all of that time the affairs of the es

tate "have been managed in a proper and suitable way, and that the various heirs and interested parties have received the income from the estate as provided under the terms

of the will."

The only ground stated in the petition for interference by the court in the matter is that "it is desirable that three additional trustees be appointed, that these three additional trustees be selected from the various groups of heirs, and your petitioners recommend and suggest the appointment of" three named parties, who are alleged to be "suitable and proper persons, well qualified and competent to perform the duties of trustee of this estate."

[1, 2] That no cause of action was stated against the trustees, if they had been made

[4] It is only in cases where a specific remedy is provided by statute, that rights can be enforced otherwise than by civil action. Gay v. Morgan, 4 Bush, 606; Stephens v. Miller, 80 Ky. 47; Kinney v. O'Bannon, 6 Bush, 692; Combs v. Commonwealth, 71 S. W. 504, 24 Ky. Law Rep. 1310.

[5] An ex parte proceeding is not necessarily a special proceeding, but more often is a civil action in which all interested parties join as plaintiffs, and where, in addition to their consent, judicial action is required.

[6] This clearly is not a special proceeding, since not specially authorized by statute or the will. Nor is it a civil action either, as defined by the Code or at common law, because of the absence, either as plaintiffs or defendants, of the parties whose adverse rights are involved and sought to be abridged, if not denied. As said in City of Covington, Ex parte, 176 Ky. 140, 195 S. W. 439:

"At common law it was essential to a judicial determination that there be three persons, the actor, the reus and the judex. Without both of the first two there can be no contest nor any opposition to any of the wishes

(273 S.W.)

4. Trial 296(3)—Instruction making it absolute duty of mine owner to maintain roof free from hanging slate held erroneous, though other instruction properly defining duty.

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 judgment entered on that petition, without responsive pleading or proof, denies the only relief sought, and is neither responsive to the petition nor supported by pleading or proof. It is then in substance and effect, but an arbitrary exercise by the court, on its own motion, of powers vested by will in parties not before the court.

A court of equity might as well attempt to appoint a committee to take charge of a man's property upon the ex parte petition of his wife and children, alleging simply that he had managed his affairs properly for more than 50 years, but they deemed it desirable to have another or others appointed in his stead, or to share his responsibility. That the judgment herein is not merely voidable but absolutely void, seems to us too obvious to admit of argument.

[7] As the judgment is void, and appellants did not enter a motion in the lower court to set it aside, as is required by section 763 of the Civil Code, before an appeal will lie to reverse it, and as appellees, in due time, made a motion to dismiss the appeal, it must be and is dismissed.

ROCKPORT COAL CO. v. BARNARD.
SAME v. ADAMS.

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

1. Trial 250 Instruction on employee's duty of inspection held improper, where no question thereof either in pleadings or evidence.

In action for death of miner, where there was no question, either in pleadings or evidence, involving duty of inspection on part of decedent, instruction that decedent was under no duty to inspect or repair roof was improper. 2. Master and servant 293 (14)—Instruction held erroneous, as imposing absolute duty on employer to maintain mine roof free from hanging slate.

In action for death of miner, instruction making it absolute duty of defendant to maintain roof free from hanging slate held prejudicial error, though another instruction properly told jury it was duty of defendant to exercise ordinary care to maintain roof in reasonably safe condition.

5. Witnesses 379 (3)-Exclusion of written statement inconsistent with testimony, though merely expressing opinion, held error.

Where witness testified that there was hanging slate at place where plaintiff's intestate was killed, but prior to trial he had signed statement that it was his honest opinion that deceased was hurt because he raised himself too high while riding in bank car, such statement, though merely expressing an opinion, being inconsistent with his testimony, was competent to destroy or weaken latter and exclusion thereof was error.

6. Master and servant 291 (8)—Instruction on willful misconduct of miner held properly refused.

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 instruction on willful misconduct was properly denied, but even if he violated company's rule such violation is contributory negligence and not willful misconduct.

7. Evidence 481 (2)-Expressions of opinion, as to danger of riding on front of bank car with driver, inadmissible.

In action for death of miner while riding on a bank car taking him to his place of work, mere expressions of opinions of witnesses, as to danger of riding on front of car with driver, are inadmissible.

8. Master and servant

356-Willful misconduct of fellow servant not bar to recovery. Fact that fellow servant, by his own willful misconduct, brought injuries to himself and consequent injury to plaintiff employee does not bar plaintiff's recovery therefor; fellow servant doctrine not being available as a deInstruction, that deceased miner, injured by contact with roof, was under no duty to in-fense, where employer failed to elect to operate 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 employer to maintain roof free from hanging slate; employer being required to exercise only ordinary care to maintain roof in reasonably

safe condition.

3. Master and servant

296(4)—Instruction

held objectionable as relieving miner from any duty of care.

Appeal from Circuit Court, Ohio County.

Separate actions, tried together, by Ida H. Barnard, administratrix, etc., and by L. A. Adams against the Rockport Coal Company. Judgment for plaintiff in each case, and defendant appeals. Reversed, with directions, in first case, and affirmed in second case.

Barnes & Smith and J. S. Glenn, all of Hartford, for appellant.

Instruction, that deceased miner had right to assume that employer would maintain roof free from hanging slate, was objectionable, in that it might have been understood by jury to lees.

Woodward & Kirk, of Hartford, for appel

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

trip, Barnard turning his mule loose in the entry and getting on the front end of the car with the driver. Barnard and the driver faced the way the mule was going, while the two on the rear of the car faced backward, and the five on each side of the car within the body sat facing each other.

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 something over 100 feet below the surface. Its employees are taken into the mine by an elevator, and when they reach the bottom they are taken to their several places of work in bank cars drawn by mules. These cars go along the track in the main entry until the workmen reach their respective places of work in the cross entries or rooms, or get near to them.

In transporting the coal from the rooms and through the side entries to the main entry mules are used in drawing the cars, but when they reach the main entry they are taken by a motor propelled by electricity and taken out. So that along the main entry there is erected a wire for the transmission of this power. The electricity, however, is not turned on in that entry until 7 o'clock in the morning, at which time the workmen are all supposed to be in their places of work, and it is turned off in the afternoon before they are supposed to stop their work. The bank cars are collected at or near the bottom of the shaft in the morning, so that the drivers may attach to them their mules and carry the workmen through the main entry in the mule-drawn cars before the electricity is turned on.

The roof in the main entry was about 48 inches above the rails of the track, but at places it was considerably higher because of fallen slate. The workmen carried carbide lamps in their caps, but when riding in the car either removed or dimmed them because of their close proximity to each other while so riding. While thus riding it was necessary for all the occupants to sit in a stooped position to avoid coming in contact with the roof, as there was a space of only 13 inches between the top of the car and the roof at certain places.

When the car started, Barnard was sitting in front on the right of the driver, and Adams sitting in the body of the car just behind him, and all of the occupants as they proceeded were in a stooped position. When they had gone some distance into the main entry Barnard's head came in contact with the roof or some obstacle, and he was knocked backward on the shoulders and back of Adams, who was sitting immediately behind him, and before the car could be stopped it had gone some 12 or 15 feet, and during that time Barnard's body was crushed and scraped against the roof, being between it and the body of Adams and other occupants of the car, the witnesses referring to it as being "roofed." Barnard died the next day from his injuries, and Adams received some injury, and these two suits resulted. They were tried together in the cir

Barnard was the driver of a bank car, and Adams was a coal loader. When Barnard reached the bottom on the morning of January 9, 1920, there was left only one car available for the transportation of the remaining workmen to their places of work, and that car had then already been appropriated by another who had hitched his mule to it, and this left no car to which Barnard might attach his mule. The other cars had all left with their loads of workmen, and, including the 2 drivers, there were 14 work-cuit court, and a verdict of $15,000 returned men left. The trolley wire in the main entry was attached to hangers which were in turn attached to the roof, and ran approximately one foot to the right of the righthand rail going in, and near the rib or wall on that side.

The bank cars were 9 feet in length. 2 feet, 11 inches wide at the bottom of the bed, but had a 9-inch flange on each side sloping upward, so that the car was 4 feet in width at the top, and was 2 feet deep at the front end, and 17 inches at the rear. The top of the car was 2 feet and 11 inches from the top of the rail. There was a bumper on the rear end of the car where two men sometimes rode. Those riding inside of the car sat or rested upon the sloping flanges on each side, and faced those riding on the other side. There was a place on the front of the car for the driver to sit, and sometimes another sat in front with him. The driver sat on the left side of the front end, and such other on the right side. There

for Barnard's estate, and $500 in the Adams Case. The appeals are from both judgments, but on the same record.

In the Barnard Case the negligence alleged is that defendant so negligently managed, maintained, and operated its mine and the entries and equipment therein that Barnard was hurled with great force against a piece of slate, or other hard substance projecting from the roof or side of the main entry, causing his injuries as stated. There was no allegation in the petition, however, that the company was operating under, or entitled to operate under, the Workmen's Compensation Act. The answer is a general denial, and in separate paragraphs pleas of contributory negligence, assumption of risk, and a willful violation of the rules by Barnard resulting in his death, were relied upon.

The plaintiff filed demurrers to each of the three last-named paragraphs, and disclosed therein for the first time that defend

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