Decided June 3, 1927.
Appeal from Pulaski Circuit Court.
J.L. COLYER, R.L. BROWN and SIMPSON PHELPS for appellant.
W.N. FLIPPIN and E.T. WESLEY for appellee.
In this action of slander a demurrer was sustained to the petition as amended, and the petition was dismissed. Plaintiff has appealed.
The language which, it is claimed, the defendant falsely and maliciously spoke of and concerning plaintiff is: "Mae Walker is a bastard. John Walker, her reputed father, is not her father." It appears from the pleadings that at the time the words were spoken plaintiff was a school girl, attending school at Pisgah, Pulaski county, and was respected by her teachers, school children, and all good people of that county. It is alleged that the words were maliciously spoken and spread to injure plaintiff in her reputation, and to bring her shame, ridicule, and disgrace in the estimation of the teachers, pupils, and of all good people of Pulaski county. It is further alleged that the words were publicly spoken and spread by the defendant among the teachers and all the pupils attending the school, and that many of them believed the words were true, and that plaintiff "was so humiliated, and suffered so great mental strain on account of said language being spread by defendant, and felt that she was and would be neglected and slighted by her schoolmates to such an extent that she was forced to abandon and leave school."
Words are said to be actionable per se when there is a conclusive presumption of malice and damage. When not actionable per se, both malice and damage must be alleged and proved. 17 R. C. L. 264; Baker v. Clark, 186 Ky. 816, 218 S.W. 280. Words falsely spoken are actionable per se only when they impute (1) the commission of a crime involving moral turpitude for which the party might be indicted and punished; (2) an infectious disease likely to exclude him from society; (3) unfitness to perform the duties of an office or employment; or (4) prejudice him in his trade or profession; or (5) tend to disinherit him. Spears v. McCoy, 155 Ky. 1, 159 S.W. 610, 40 L.R.A. (N.S.) 1033. It is at once apparent that the words on which this action is based do not fall within any of these classes. Indeed, it is the well-established rule that oral words charging a person with being a bastard are not actionable per se (36 C. J. 1170; Maxwell v. Allison, 11 Serg. R. (Pa.) 343; Hoar v. Ward, 47 Vt. 657; Paysse v. Paysse, 84 Wn. 351, 146 P. 840), and the situation is not changed by the further charge that one's reputed father is not her father, as that is simply a different way of saying the same thing.
It remains to determine whether there was a sufficient plea of special damages. Whether if it had been alleged that because of the charge plaintiff was excluded from the school the petition would have been sufficient, we need not inquire. There is simply an allegation of humiliation and mental strain, coupled with the statement that plaintiff felt that she was and would be neglected and slighted by her schoolmates to such an extent that she was forced to abandon and leave the school. At most, this is simply an allegation of mental suffering, and, under the rule prevailing in this and many other jurisdictions, mental suffering alone is not sufficient to show special damages that will support an action for words not actionable per se. Taylor v. Mosely, 170 Ky. 592, 186 S.W. 634, Ann. Cas. 1918B, 1125; Hirshfield v. Ft. Worth National Bank, 83 Tex. 452, 18 S.W. 743, 15 L.R.A. 639, 29 Am. St. Rep. 660.
It follows that the demurrer to the petition was properly sustained.