
    Case 8. — ACTION BY NELLIE PATTEN AGAINST H. C. SHIPP FOR SLANDER. —
    May 22.
    
    Shipp v. Patten.
    Appeal from Harrison Circuit Court.
    L. P. Fryer, Circuit Judge.
    Judgment for plaintiff. Defendant appeals.
    Reversed.
    1. Slander — Actionable Words — The following- words: “Miss Nellie, when she was employed as a clerk in my store, dishonestly took away goods from the store that did not belong- to her; I found in her grip a lot of goods that she had dishonestly taken from my store and put in her grip, and I accused her of dishonestly taking them,” import a charge of larceny and are per se actionable as slanderous, under the weight of authority in this State.
    8. Defense — Denial in Part — Privileged Communication — Election —Error in Instructions — The defendant, by his plea, admitted he spoke the words alleged, except that he did not use the word “dishonestly,” and pleaded that the words spoken by him were spoken in confidence and were a privileged communication, and being required to elect whether he would stand by his denial of having charged the plaintiff with taking the goods “dishonestly” or upon his. plea of privileged communication, under protest elected to stand upon the latter defense. The-court, in its instructions, said to the jury that it was admitted by the pleadings that the defendant had spoken the words alleged in the petition, which included the word “dishonestly.” This was error and prejudicial to the defendant.
    3. Question for Court — It is the province of the court to decide whether a communication is or not privileged when the facts are not in dispute, but when in dispute the question is for the jury.
    M. C. SWINFORD, attorney for appellant.
    POINTS AND AUTHORITIES CITED.
    1. Petition not good on demurrer without showing special damages. (Sharpe v. Bowlar, 19 R., page 2019; Monroe v. Davis, 26 R. p. 729; McCauly v. Elrol, 16 R. p. 293; Muid v. Rogers, 102 Ky. p. 280; Blackburn v. Clarke, 19 R., p. 659; Dodge v. Chivlery 23 R., page 549; Brown v. Piner, 6 Bush, page 518;'Hawn v. Smith, 4 B. Monroe, page 386; Sutherland on Damages, Vol. 4, page 3510, See. 1215; Sutherland on Damages, Vol. 4, page 3482, Sec. 1204; Sutherland on Damages, Vol. 4, page 3517, See. 1218; Abbott’s Trial Evidence, 2d Ed., page 844; Smith v. Commonwealth, 96 Ky., page 85;
    2. The court erred in requiring defendant to elect and sustaining motion to strike out of substituted answer: Louisville Courier Journal Co., v. Weaver, 13 R., page 600; Rooney v. Tierney, 82 Ky., page 253; Harper v. Harper, 10 Bush, page 447; Lane & Wife v. Bryant, 100 Ky., page 138; Sharpe v. Bowlar, 19 R., page 2018; Morris v. Curtis, 20 R., page 56.
    3. The court erred in giving instruction No. 1 over the objection and exception of defendant: Sackett on Instructions to
    Juries, 2d. ed., page 842, Sec. 24; Sackett on Instructions to Juries, 2d. ed., page 341, Sec. 31.
    4. The court erred in giving instruction No. 7 over the objection and exception of defendant: (Louisville Press Co. v. Tennelly, 106 Ky., page 371.)
    5. The court erred in refusing instruction “C,” offered by defendant, to which he objected and excepted at the time of the trial: (Letton v. Young, 2 Met., page 558; Taylor v. Moran, 4 Met., page 133; Crenshaw v. Bowman, 11R., page 442.)
    6. The court erred in the admission of incompetent testimony over (defendant’s objection and exception, and especially in not properly cautioning the jury as to the weight to be given.to the evidence of Abner Oldham and Jack Patton, and also as to the conversation subsequent to the communication declared on: (Taylor v. Moran, 4 Met., page 133.)
    7. The verdict is flagrantly against the weight of the evidence and should be Set aside: (Abott’s Trial Evidence, 2nd Ed., page 842; Buisson v. Huard, 56 L. R. A., page 296 10 La., 768.)
    HAZELRIGG & HAZELRIGG for appellant.
    C. J. BRONSON, HANSON PETERSON and A. R. BURN AM of counsel.
    POINTS AND AUTHORITIES.
    1. All defenses are available in slander cases except when inconsistent. (Civil Code, Sec. 113, Sub. Sec. 2 & 4; Harper v. Harper, 10 Bush, 447; Rooney v. Tierney, 82 Ky., 253.)
    2. It was competent and not inconsistent for the . defendant to deny using the malice bearing adverb “Dishonestly” in the communication, — admitting at'the same time the use of the substance of the conversation as charged in the petition and pleading it as privileged. The use of that word tended to prove malicious intent, and its non-use tended to show want of malice. (Brité v. Gill, 2 T.' B. Mon., 65.)
    3. The pleadings presented no issue save that of express or actual malice on the one hand, or good faith on the other. The instructions were based on a total misconception of the law of the case and on the issues'involved.
    4. Whether the circumstances attending the communication as established by the uncontradicted testimony gave rise to the doctrine of conditional privilege, was a question of law and this question was erroneously left to the jury. Under the instructions the jury might have determined and doubtless did determine, that it was not the social duty of defendant to answer the inquiries of Vanderen. (Newell, Sec. 9 and 10, pages 391 and 392.)
    5. As matter of law it was the duty of the defendant to answer these inquiries and the jury should have been so told, and if answeréd in good faith; he was not answerable for slander. (New-ell Secs. 81 and 87 pages 490 and 494.)
    6. The peremptory instruction asked by defendant should have been given because the whole communication properly attempted to be pleaded by the defendant shows that the communication was not defamatory and at most only imported a breach of duty on the part of plaintiff in not charging the goods to herself. She had the right to take them and could not be guilty of larceny in taking them. (Brite v. Gill, SUPRA.)
    BERRY & WEBSTER, for appellee.
    CITATIONS OF AUTHORITY.
    Newell on Libel and Slander, 2d Ed., 619; Hume v. Arrow-smith, 1 Bibb, 165; Logan v. Steele, 19 Bibb, 593; Jones v. McDowell, 4 Bibb, 188; Logan v. Steele, 1 Bibb, 594; McGowan v. Menifee, 7 T. B. M., 314; 4 Coke, 20 Robinson Ky. Crim. Law & Procedure, Yol. 1, 420; Warmoth v. Commonwealth, 81 Ky., 133; Harper v. Harper, 10 Bush, 454; Morgan v. Booth, 13 Bush, 480; Rooney v. Tierney, 82 Ky., 243; Lane and wife v. Bryant, 100 Ky., 138; Jones v. Forehand, 32 Amer. S. Reports, 82; Sharpe v. Bowlar, 19 K. L. R., 2018; Blashfield on Instructions to Juries, 379; Clift v. Stockdon, 4 Lit., 217; Nicholson v. Merritt, 23 K. L. R., 2283; Nicholson v. Rust, 21 K. L. R., 645; Courier Journal Company v. Sallee, 20 K. L. R., 643; Frey v. Matthias, 18 K. L. R., 913; Cooper v. Toebe, 15 K. L. R., 844; .O’Connor v. Henderson Bridge Co., 95 Ky., 633; Tarvin v.Timberlake, 18 K. L. R., 807; McClain on Criminal Law, 1st Vol., See. 556.
    JOHN R. ALLEN, for appellee.
    
      AUTHORITIES CITED.
    Civil Code of Practice, Section 124, Sharp v. Bowlar, etc., 19 Ky. Law Rep., 2018; Odgers on Libel and Slander, First American edition edited by Melville M. Bigelow, Section 215, bottom page 194; same book, Odgers on Libel and Slander in Volume 13 of the Text Book Series published by Blackstone 'Publishing Company taken from Second English Edition, See. 216, top page 163, bottom page 325.
   Opinion by

Judge Nunn

Reversing.

The appellee instituted this action against appellant, and charged that he willfully and maliciously uttered and published of and concerning her, in the presence and hearing of divers persons, these words: “Miss Nellie, when she was employed as a clerk in my store, dishonestly took away goods from the store that did not belong to her. I found in her grip a lot of goods that she had dishonestly taken from my store and put in the grip, and I accused her of dishonestly taking these goods, and she broke down and cried and begged me not to discharge her because it would disgrace her, and I kept her a few days longer in the store, and then discharged her. I would say this to anybody, because I can prove it, and I wouldn’t hesitate to go into her own family and say just what I have said to you. ’ ’ The appellant filed a demurrer to the petition, which was overruled. It is contended that this was error, for the reason that the words charged were not per se actionable. Appellant based this contention upon the theory that, as appellee was one of the clerk’s in appellant’s store, she had such possession of the goods that, in taking them from the shelves, secretly, with the purpose to convert them to her use, she was not guilty of the crime of larceny, but only of a breach of trust. .

The appellant’s counsel refers to authorities which seem to sustain his position, but the weight of authority and the more reasonable rule appears to be opposed to it. In Robinson’s Kentucky Criminal Law vol. 1, section 420: ‘ ‘ There is a difference between the terms ‘custody’ and ‘possession.’ Possession is the present right and power to control a thing. A person has the custody of property, as distinguished from the possession, where he merely has the care and charge of it for one who retains the right to control it, and who therefore retains constructive possession. Where goods are delivered by the master to his servant or other agent, he parts with the custody only, and not the possession; he has constructive possession. A servant, therefore, or other agent, who has merely the care and custody of his master’s goods, is guilty of larceny if he converts them to his own use without his master’s consent. Thus, - where a clerk in a store takes money from the safe or cash drawer of his employer with a felonious intent, or removes goods from the shelves intending to steal them, he is guilty of larceny.” See also, on the same point, Warmoth v Commonwealth, 81 Ky. 133, 4 Ky. L R 937. Admitting, however, the contention of appellant’s counsel that appellee’s possession of the goods was such that, in taking and converting them, she was not guilty of the crime of larceny, yet the words charged in the petition show that she was guilty of the offense provided by a statute enacted in 1902 — that of fradulently converting property, held in á trust relation, without the consent of the owner. See Commonwealth v. Barney, 74 S. W. 181, 24. Ky. Law Rep. 2352, and Allen v. Brady, 83 S. W. 565, 26 Ky. Law Rep. 1173.

The appellant filed an answer and several amended answers, and in substance denied that he willfully or maliciously uttered or published the words charged, or that he spoke or published the words as charged, but alleged in substance that he spoke and published them in-effect as charged, except the word “dishonestly,” which word he denied having used of and concerning the plaintiff. By a second paragraph he pleaded that the words actually used by him of and concerning the appellee were spoken in confidence and were under the circumstances a privileged communication. and gave the facts and circumstances showing the privilege. Upon motion of appellee, appellant was required to elect whether he would stand by his denial of having charged appellee with taking the goods “dishonestly,” or upon his plea of privileged communication in the second paragraph. Under protest he elected to stand upon the defense of privileged communication. The substance and effect of the pleadings of appellant were to deny the malice and the use of the word “dishonestly” wherever it •occurred in the alleged slanderous words charged, and an admission of the use of all the other words. By the action of the court he was forced to admit the use of the word “dishonestly” before being allowed the right of his plea of privilege. This placed the defendant at a great disadvantage. The proof showed that in relating the communication to Dr. Yarderen, to whom the alleged slanderous words were uttered, the appellant did not use the word “dishonestly,” but the court in instructing the jury said: “That it was admitted by the pleadings that appellant had spoken of and concerning the appellee the language as charged in the petition.” and then copied it, including the word “dishonestly”: “That she had dishonestly taken his goods from the store, * * * and I accuse her of dishonestly taking these .goods. ’ ’ etc. By the use of this word as it occurs in the language charged, there was a “sting” added which would not have existed, if the appellant had been permitted to deny the use of that word.

The measure or extent of the injury to appellant, by the court telling the jury that he admitted the use of this word, can better be understood and appreciated, when considered in connection with two other instructions given. One was given in behalf of appellant on the question, of privilege, which closed by the use of the following words: ‘ ‘ They will find for the defendant, unless they believe from the evidence that such speaking was done by the defendant with actual or express malice towards plaintiff.” By the other the court said to the jury they might in their discretion award punitive damages. It will be readily seen that the use of that word was calculated to injure the appellant, it aided the jury in arriving at the conclusion that the appellant was actuated by malice, and possibly prevented the jury from finding for him; or, at least, it may have caused the jury to increase the amount of their verdict by way of punishment. To illustrate: Suppose A. says of B., that he is a horse thief; he stole C.’s horse. B. sues A. for slander, and alleges that A. said of and concerning him “that he was a convicted horse thief and scoundrel; that he stole CPs horse.” The words actually used by A. were per se slanderous, as were the words used in the case at bar. It is certain, however, the added words were prejudicial to the defendant, especially when the court tells the jury that the defendant admits that he used them. To say that a defendant in a slander suit must admit all the words charged, before he is allowed to plead a qualified privilege, places the defendant in a dilemma; if he denies the speaking of the words, the plaintiff will often prove the substance of them, and recover. If he is compelled to admit all the words to plead the privilege, then often he will admit that which is not true in fact, and enough to show that he was actuated by malice, which will defeat him.

The plea of the appellant in this-case was in its nature a plea of confession and avoidance, and, while denying the use of the word “dishonestly,” confessed enough to give “color” to appellee’s petition — that is left uncontroverted enough to give her a cause of action. In Chitty on Pleadings, top page 552, it is said: “The plea in avoidance must therefore give color to the plaintiff; that is, must give him credit for having an apparent or prima facie right of action, independently of the matter disclosed in the plea to destroy it.” In Yol. 4 Ency. Pleading & Practice, 669, this language from Chitty is copied, and many authorities cited to sustain it. In Stephen on Pleading, p. 206, the word “color” is defined. The author says: “As a'term of pleading, it signifies an apparent or prima facie right; and the meaning of the rule that every pleading in confession and avoidance must give color is that it must admit an apparent right in the opposite party, and rely therefor on some new matter by which that apparent right is defeated.” This particular point in pleading has not been considered by this court, or, at least, we have not been able' to find any decision directly in point. In our opinion when this court said, in the cases of Harper v. Harper, 10 Bush, 447; Roony v. Tierney, 82 Ky. 255, and other like cases, that before a defendant could plead the privilege and justify the speaking, he must admit the uttering of the words as charged in the petition; that this language was used in these decisions subject to the qualification and restrictions as defined in Chitty and Stephens on pleadings. That is, the court meant that the defendant must admit the speaking of the words as charged in the petition, or, at least, enough to give the plaintiff color, i. e., admit enough of the words to give him credit for having an apparent right.or cause of action. This is the correct rule, and unquestionably is a just one; otherwise a defendant in a slander suit is placed at a great disadvantage.

The appellant also complains that the court erred in not deciding as a matter of law that the occasion upon which the language used by the appellant to Dr. Yanderen was a privileged one, instead of submitting that question to the jury. The appellant is not in a position to complain of this, for all the instructions given on this point were offered by him. It is, however, the province of the court to decide whether a communication is privileged, or not, when the facts are not in dispute, but when in dispute the question is for the jury. If the pleadings are made up on the return of the case as indicated, the appellee will be entitled to the burden, and the opening and closing argument. The appellant controverted a material part of her case — the malice and a part óf the alleged slanderous words. She will still have the right to prove her whole case as alleged.

For the reasons given the judgment is reversed, and remanded for a new trial consistent herewith.  