
    Mulcahy v. Deitrick, Sr.
    
      (Decided March 18, 1931.)
    
      Messrs. Dittmer $ Hess, for plaintiff in error.
    
      Messrs. Donovan <& Williamson and Mr. James Donovan, Jr., for defendant in error.
   Justice, P. J.

The judgment which this proceeding in error reviews was entered in the court of common pleas of Henry county on a verdict for defendant in an action brought by Ned F. Muleahy, as plaintiff, against Joseph Deitrick, Sr., to recover damages for an alleged slander of plaintiff in his occupation as a school teacher.

The words averred to have been spoken of and concerning plaintiff are: “He is not a fit person to teach any school. He is no good as a teacher and he will not get the school another year. He plays for dances and then goes to sleep in the school room during school hours. He made false reports as a teacher to the board of education. ’ ’

The defense was a general denial, and also a plea of privilege, which plaintiff denied.

It appears that at the time of the alleged utterances plaintiff was teaching a rural school in Marion township special school district in Henry county. The defendant was then, and for fifteen years prior thereto had been, president of the board of education of said district. Plaintiff was an applicant for rehire. The board refused to again employ him.

Defendant testified that he did not utter the words in question. On the other hand, the record is replete with testimony that the defendant did speak and publish said words. The facts and circumstances surrounding the publications are in dispute, there being evidence tending to prove the plea of privilege, and also evidence tending to prove the material allegations of the amended petition.

The sole claim of error assigned in the brief of plaintiff in error, and hence the only one we are required under Section 12248, General Code, to consider and determine, is error in the charge.

The trial court, in part, charged the jury as follows :

“Members of the Jury, I instruct you as a matter of law in this case, that in order to authorize the plaintiff to recover, he must prove by a preponderance of the evidence that the defendant falsely and maliciously spoke of and concerning the plaintiff the words substantially as charged in plaintiff’s amended petition to some person or persons other than the plaintiff, and that such words if spoken were spoken of plaintiff falsely and maliciously and to his injury, and that if you so find by a preponderance of the evidence you should find in favor of the plaintiff in such sum as you find from the evidence he has sustained.
“And on the contrary if you fail to find by a preponderance of the evidence that the defendant falsely and maliciously spoke of and concerning plaintiff the words substantially as charged in plaintiff’s petition, and if you fail to find that the defendant was injured in his reputation as a school teacher of public schools and that said statements were uttered falsely and maliciously of plaintiff by the defendant then your verdict should be for the defendant. ‘No cause of Action.’ ”

This is wrong. The words alleged to have been uttered relate to plaintiff’s occupation, and impute to him want of capacity as a school teacher, and also unprofessional conduct. These words are therefore actionable per se.

In Hayner v. Cowden, 27 Ohio St., 292, 22 Am. Rep., 303, our Supreme Court held: “Words, charging a clergyman with drunkenness, when spoken of and concerning him in his office or calling, are actionable per se.” In this case, Judge Wright, on page 295 of 27 Ohio State, said: “Are words which charge a minister of the gospel with drunkenness, when spoken of him in his profession or calling, actionable per se? We answer that they are. We understand the rule to be, that words spoken of a person, tending to injure him in his office, profession, or trade, are thus actionable.” To like import is the text in 17 Ruling Case Law, page 310, Section 50.

Inasmuch as the words alleged to have been spoken are clearly actionable per se, it follows as a matter of law that malice is presumed. 17 Ruling Case Law, page 322, Section 65. Plaintiff, therefore, was not required to prove malice, and the trial court in so charging put upon him a burden unwarranted in law, which was prejudicial to him and hence constitutes reversible error.

In coming to this conclusion we are not unmindful that a general verdict was returned. But none of the issues determinative of the controversy was tried and submitted free from error, and hence the two issue rule cannot save the judgment. McCombs v. Landes, 35 Ohio App., 164, 171 N. E., 862.

Inasmuch as this case may be retried, it seems fitting to say in view of the record that justification cannot be proven under a general denial. Duval v. Davey, 32 Ohio St., 604, 610.

Holding these views, it follows that the judgment of the court of common pleas should be reversed.

Judgment reversed and cause remanded.

Crow and Klinger, JJ., concur.  