Pumphrey, Byron

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University of Kentucky

Kentucky Law JournalVolume 23 | Issue 2 Article 141935Torts--Libel per seByron PumphreyUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationPumphrey, Byron (1935) "Torts--Libel per se," Kentucky Law Journal: Vol. 23 : Iss. 2 , Article 14.Available at: https://uknowledge.uky.edu/klj/vol23/iss2/14SUDFNT NOTESor devise of property to a devisee or legatee, subsequent precatorywords will not be construed to show an intent to creat a trust, as thiswould be inconsistent and repugnant to the prior expression of thetestator. Bogert, Trusts, p. 50; and Perry, Trusts, See. 115. This rulewas recognized and followed in two recent Kentucky cases. Gross v.Smart, 189 Ky. 338, 224 S. W. 871 (1920); and Igo v. Irvine, supra.In the latter case the testator devised lands to his son absolutely, andby a subsequent provision, he requested all of his children, if theyshould die without issue, to will the property received from his estate,to the testator's surviving children or the issue of those dead. Thissubsequent provision was held insufficient to create a trust, and thuslimit the fee simple title previously devised. This rule was alsoadopted and followed in the case of Hess v. Sing er, 114 Mass. 56(1873).Therefore in conclusion the writer submits that by virtue of thisfirst provision in the will granting his property to his wife abso-lutely, the testator created a fee simple interest in the property inhis wife, which interest cannot properly be said to be in any wayaffected or changed by the subsequent use of precatory words in theInstrument.W. R. Joxqns.TonTs-LmiEL PEP S.Conditions obtaining in the late prohibition era gave rise to manya good newspaper yarn. But out of such conditions also floweredmany a well founded suit in libel. A typical case is the late one ofCourier-Journal Co. v. Noble, 251 Ky. 527 (1933).The plaintiff, the owner and operator of a rooming house, suedthe paper because of a published news dispatch which stated that Awas killed "during a liquor raid on the home of Mrs. Lizzie Noble."The officers had entered Mrs. Noble's home, not for the purposeof searching it for liquor, but for the purpose of arresting some menwho had entered it. A trial before a jury resulted in a verdict andjudgment of $3,100 for the plaintiff. The defendant appealed on theground "that an innuendo cannot extend the words beyond theirnatural import, and that the words, 'during a liquor raid,' do notnecessarily mean that the owner of the house raided was an unlawfuldealer in whiskey, and that a person may be an unlawful possessor ofliquor and still not be 'an unlawful dealer in whiskey.' ". Held, thewords carried with them the imputation that the plaintiff was violat-ing the Prohibition Act in her home, and, being not only such as toinjure her in her reputation and expose her to shame and disgrace,but such as to prejudice her in her business, they are libelous per se,and therefore susceptible to the meaning given them by the innuendo.The language of the court is confusing. A publication cannot belibelous per se, and yet need an innuendo with which to explain themeaning of the words used. If the words in question are actionable398 KENTUCKY LAW JOTJRNALper se, no innuendo is required. But where the words used are notlibelous per se, it is necessary to allege that they were understood ina libelous sense. This is -the function of the innuendo. 17 R. C. L. 396,Sec. 150. If, then, as we apprehend, the court meant to say that theinnuendo fulfilled any function in this case, such a conclusion mustbe rejected as wrong.The "decision appears otherwise sound. Thus, before its un-fortunate reference to the innuendo, the court states that "whilespoken words are slanderous per se only if they impute crime, in-fectious disease, or unfitness to perform duties of office, or prejudiceone in his profession or trade, or tend to disinherit him, written orprinted publications which are false and tend to injure one in hisreputation or to expose him to public hatred, contempt, scorn, obloquy,or shame, are libelous per se." Ripley v. Lee, 88 Ky. 603, 11 S. W. 713(1889); Axton-Pisher Tobacco Co. v. Evening Post Co., 169 Ky. 64,183 S. W. 269 (1916). The court might well have stopped here. Forthe proper conclusion is that the words were actionable per se, andtherefore the innuendo should have been rejected as surplusage. 17R. C. L. 397, Sec. 151; 37 C. J., Section 332.The point we have tried to make seems worth stressing when it isremembered that the jury in the principal case assumed a needlessburden if it attempted to pass upon the truth of the innuendo, namely,whether the words, "during a liquor raid," meant that the owner ofthe house raided was an unlawful dealer in whiskey. It was sufficientthat the words were false, that they were written, and that theytended to injure the plaintiff in her reputation, or to expose her topublic hatred, contempt, scorn, obloquy, or shame. 17 R. C. I. 398,Sec. 152.BYRo1 PUmPEBEy.

Torts--Libel \u3cem\u3eper se\u3c/em\u3e

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Torts--Libel \u3cem\u3eper se\u3c/em\u3e

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