Kentucky follows this rule. See, Tucker v. Kilgore, 388 S.W.2d 112, 114 (Ky. 1964) (published words that prejudice one in his or her profession trade or business are actionable per se); Landrum v. Midway College, No. 95-CA-003225-MR, 1997 WL 335064 (Ky.App. 1997) (same); Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21 (1933). In Landrum, for example, the Kentucky Court of Appeals held that a College Dean's comments that a professor's grade assessment had been "unfair" was so injurious.
In support of his complaint, appellant argues that he is entitled to take the deposition as if under cross-examination because: (a) by subsection (8) of section 606 of the Civil Code of Practice, now section 421.210 of the Kentucky Revised Statutes, any party to an action has an absolute right to take the deposition of the adverse party; and (b) Rule 26.01 of the Rules of Civil Procedure provides that any party may take the deposition of any person, including the party, by oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. In support of his first thesis, appellant cites the Kentucky cases of Western Union Telegraph Co. v. Williams, 129 Ky. 515, 112 S.W. 651, 19 L.R.A., N.S., 409; Owensboro City Railway Co. v. Rowland, 152 Ky. 175, 153 S.W. 206; Sackstaeder v. Kast, 105 S.W. 435, 31 Ky.Law Rep. 1304; Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21; Louisville Nashville Railroad Co. v. Miller, 44 S.W. 119, 19 Ky.Law Rep. 1665; Gowdy v. Gowdy, 230 Ky. 545, 20 S.W.2d 170; and urges with such earnestness that these cases support his proposition, we believe passing comment about them is required. We have concluded that no one of them is sufficient authority to support his position.
If malice exists, the actions exceed the privilege or constitute an abuse thereof. See, e.g., Konowitz v. Archway School Inc., 65 A.D.2d 752, 409 N.Y.S.2d 757 (1978); Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21 (1933); Mulcahy v. Deitrick, 39 Ohio App. 65, 176 N.E. 481 (1931). Accusations or statements, written or oral, imputing to a school teacher want of professional capacity are generally actionable per se.
The remarks of the defendant, addressed in person to a school board at a school board meeting concerning the curriculum and instruction in an English class at a public high school in which his son was enrolled and his son's difficulties with the class clearly came within the scope of the privilege based on mutuality of interest of speaker and listener. See Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21 (1933). The concern of a parent for the welfare of his child provides a privilege for the occasion of speaking to one having the power or duty to take action for the benefit of the child.
State courts which have adopted a similar rule adhere to the same interpretation placed thereon by the Federal courts. Newell v. Desmond, 74 Cal. 46, 15 P. 369; Johnston v. McDuffee, 83 Cal. 30, 23 P. 214; Ahern v. Superior Court, 112 Cal.App.2d 27, 245 P.2d 568; Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21; Meier v. Paulus, 70 Wis. 165, 35 N.W. 301. [1] In the instant case, after the trial court ruled that portions of the deposition were admissible, the court required the respondent to read all other parts of the deposition which were relevant to those portions previously read to the jury, in accordance with subd. (4) above quoted.
The remarks of the defendant, addressed in person to a school board at a school board meeting concerning the curriculum and instruction in an English class at a public high school in which his son was enrolled and his son's difficulties with the class clearly came within the scope of the privilege based on mutuality of interest of speaker and listener. See Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21 (1933). The concern of a parent for the welfare of his child provides a privilege for the occasion of speaking to one having the power or duty to take action for the benefit of the child.
The introduction of the deposition of an adverse party as substantive evidence has long been recognized. Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21; Louisville N. R. Co. v. McCoy, 261 Ky. 435, 87 S.W.2d 921; Applegate v. Johnson, 306 Ky. 358, 208 S.W.2d 77; Wilson v. Gregory, 313 Ky. 326, 231 S.W.2d 14. In Bell v. Harmon, Ky., 284 S.W.2d 812, a statement of a party made in a pretrial deposition was held to constitute a judicial admission determinative of liability.
There has been no opinion of this Court directly deciding the question as to whether or not the taking of the deposition of an adverse party is controlled by Sections 534 and 536, Civil Code of Practice. The case of Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21, 24, is strongly persuasive that these sections relate only to witnesses who are not examined under Section 606(8) as adverse parties. There, it was held that a deposition taken under the latter section was not controlled by Section 554, Civil Code of Practice, the Court stating: "The Code makes a distinction between taking the deposition of a witness and the examination of a party.
In Louisville Nashville R. Co., v. McCoy, 261 Ky. 435, 87 S.W.2d 921, 922, where deposition of adverse party had been taken, as in this case, the court said: "Prior to the trial, appellee's deposition was taken as if on cross-examination pursuant to subdivision 8 of section 606 of the Civil Code of Practice, and over objections of appellant the court refused to permit this deposition to be read in evidence except for the purpose of contradiction, stating that only the contradictory part of the deposition might be read. In Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21, this court points out the distinction between the Code provision relating to taking the deposition of a witness and that relating to the examination of parties, and concludes that there is no restriction as to the use of the deposition of a party taken pursuant to subdivision 8 of section 606 of the Code, if the party is a competent witness, even though he may be present and testify at the trial."
This should not be done except in those rare instances in which facts peculiar to the case authorize it. This is not one of those instances. Nor do we agree with appellant, either on authority of the cited cases of American Dist. Tel Co. v. Oldham, 148 Ky. 320, 146 S.W. 764, Ann. Cas. 1913 E, 376; Sprague v. Bertke, 214 Ky. 441, 283 S.W. 401; Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21; Dix v. Gross, 271 Ky. 231, 111 S.W.2d 673, or otherwise that appellee's written statement convicted him of contributory negligence or entitled appellants to a peremptory instruction. The cited cases merely hold that declarations against interest are competent as substantive evidence, and not merely for the purposes of contradiction or impeachment.