*1 43,565 No. Inc., Telecasting, Kennedy, Appellee, v. Mid-Continent
Verne a Corporation, Appellant. (394 400) P. 2d *2 Opinion filed 23, 1964. July Angtoin, Pittsburg, argued H. Gordon cause, Towner, of and B. John Pittsburg, also of was with him appellant. on the brief for the Marshall, Pittsburg, argued of J. the cause John and was on the brief for the appellee. The opinion of the court was delivered by This is a libel action by
Schroeder, Kennedy, Verne a county J.: commissioner of Kansas, Crawford County, (plaintiff-appellee) against Mid-Continent Telecasting, Inc. (defendant-appellant) for a publication carried over the defendant’s television station on the 19th day February, of The petition 1962. was filed on the 9th day of and May, was attacked a motion to by make definite and strike, certain and a motion to by of both which were overruled. Thereafter, the defendant’s demurrer was overruled and has appeal been duly perfected by defendant from each foregoing orders.
The question is whether court committed reversible error of overruling either motions the demurrer. foregoing and/or and the appellee’s petition, omitting caption beginning alleges: paragraph, post That and his correct “I. he a resident of office address is West
Jefferson, Pittsburg, Kansas; that the date hereinafter mentioned at the on and time, duly acting present elected, qualified County he was and is the and County, Commissioner District of Commissioner and for Third Crawford Kansas, grocery proprietor and a certain and also is the owner of retail store Market, Kennedy’s being Pittsburg, Kansas; located in identified as that Inc., defendant, Telecasting, corporation now is a Mid-Continent was and existing organized of under and virtue the laws of the State of Kansas and being City, place principal Television of business located in Cherokee with its Kansas; County, engaged telecasting and in the that said defendant is licensed County, operates in Cherokee owns television station located and business and being Kansas, identified KOAM-TV. said station day February, 1962, at about the hour “II. on about 19th That or M., ruining plaintiff’s reputation purpose as a of 5:40 P. o’clock for exposing capacity, and in elected and citizen business man official hatred, plaintiff public contempt, ridicule herein to further publicly, purpose depriving public him and to embarrasss him of confidence maliciously publicize certain false and untrue the said herein did defendant being concerning plaintiff, said false and untrue statements statements facilities; telecasting the dissemina- its disseminated over time officers, statements, corporation, its the defendant of said false and untrue tion untrue; the said agents employees, same be false and knew the telecasting telecast and disseminated over defendant’s material which was attached, hereby made marked ‘Exhibit A’ and is is hereto facilities hereof. By and the dissemination “III. reason of defendant’s elsewhere, throughout of Kansas and the State material above referred confidence, subjected deprived has to em- has been *3 barrassment, harassment, humiliation, anxiety suffering mental and has and scorn, subject contempt of ridicule and all in and has been been held damage in sum One Hundred Thousand and Dollars of to his No/100 ($100,000.00). malicious, publica- by reason of the defendant’s false and untrue “IV. That mentioned, plaintiff is entitled to should be material this above tion damages punitive exemplary of One Thousand sum Hunderd as or awarded ($100,000.00). Dollars and No/100 damages plaintiff prays judgment compensatory “Wherefore, in for ($100,000.00), for Thousand and Dollars of One Hundred sum No/100 damages exemplary punitive in the sum of One Hundred Thousand and or ($100,000.00), or the total sum of Two Hundred Thousand Dollars No/100 ($200,000.00), (Em- and for the costs of this action.” Dollars and No/100 added.) phasis thereof “A” attached to the and made a Exhibit reads: County: “Citizens of Crawford they investigated? why are to be investi- . is to be And “. who . Now gated? Kennedy, County as Commissioners “The officialacts of D. Saia and Verne J. County Attorney, among County, Jones, are those and Keeth Crawford sought investigated. . . . to Kennedy mileage illegal collecting an have “D. Saia and Verne been J. office, they in per some instances even have been in rate month ever since County. paid
their meals have $153.20, here, Kennedy’s mileage the meals and meals were “As shown being $30.00. $150.55, being mileage here, the meals and meals were shown Saia’s “As copies these are these vouchers and unlawful have certified We $22.50. against county. county acquire claims property, For officials to either directly indirectly, judicial at a tax sale is a criminal offense. . . . father-in-law, Wyman, bought “At Kennedy’s the same tax sale Charles six College Pittsburg, lots in View addition to and six months later deeded Kennedy land you Kennedy over to so he can build a trailer court. Here have dealing and Saia my in copies tax sales. I have here hand the certified in showing purchases. these County . “. appointment . The Commissioners who voted Gendusa’s for subject prosecution county. are against for an unlawful claim County Engineer Niggemann, “On December W. T. of Crawford County, Appeals budget testified under oath before the Board of Tax by $21,178.25. had been exceeded employed “He further five extra men in testified that Commissioner district, employed $1,988.60; at a cost thirteen men were in Goodison’s district, $2,408.00, twenty-four Saia’s all of Commissioner which cost and that employed Kennedy’s district, men—extra men—were in Commissioner $13,251.70. cost “Keep year. in mind that 1960 was Also here is the total election amount alone, counting spent $17,648.30, that was for extra labor materials used — by these extra men. figures transcript these in “All facts and are shown this official of the hear- ing, my which I hold hand. exceeding budget “All this was done at the direction Board of County Commissioners. County County “The Commissioners of Crawford who voted exceed the budget prosecution subject violating budget criminal are law and cash basis law of the State of Kansas. . . . my copy “I have in hand certified voucher the office of the County County showing Clerk of Crawford these facts to be true. keep Kennedy in mind “Now that D. Saia and had Verne did J. approve against County. the allowance the claims as above set forth majority “These two Commissioners at all times constituted a of the Board County competitive Commissioners. No bids were taken for the above charges county. furnished the *4 by The appellant motion an order sought of the re- trial court the quiring appellee to make his more definite and certain following the particulars: alleged defamatory To said statements “1. state who made over the Defendant, broadcasting person visual facilities the and whether such of or not facilities, broadcasting operator agent was the or of said or the or owner broadcasting employee operator of the owner or of said facilities. complete the forth the full of the “2. That Plaintiff set text statement alleged publicized day 1962, on about February, to have been or the 19th of M., by o’clockP. the at about the hour of 5:40 Defendant. allege part “3. That Plaintiff acts of actual malice on the of the Defendant. allege by special damage “4. Plaintiff items of to him reason of That the publicizing defamatory alleged of the said statement.” 548 799, 107 152 Kan.
This court held in Mead v. Coffeyville, City of definite 711, pleading 2d a to make a while a on motion ruling P. order, the of propriety and certain an appealable is not ordinarily on review of the be considered order the motion will overruling In the pleading. to the same demurrer order a overruling general the opinion court said: ordinarily ruling “It and certain rests motion to make is true a on a definite ordinarily review
in the not sound discretion and therefore is court 469; Nardyz (Nelson 546, Fulton Fire Schippel, v. able. v. Kan. 56 P. 2d 143 Co., Where, however, ruling 907, 1045.) con Ins. 151 Kan. 101 2d the P. right, judicial prejudices a substantial stitutes an abuse of sound discretion and 465, 463, 265; v. (Hasty Bays, it is 2d reviewable. Kan. 66 P. v. Lofland 312, 772.) Croman, held P. It has 2d also ruling allegations peti test of the of the whether is reviewable is whether the charge is not tion are so indefinite and uncertain that the true nature of the cited.) (Lofland Croman, supra, . apparent. p. . .” and cases (p. 801.) the We shall first direct our paragraphs attention to various motion to make certain. appellant’s definite and to state who the trial court required appellee Should have over the visual broad- defamatory to be alleged made the statements facilities of casting appellant? in part:
G. S. 1961 60-746a Supp., provides broadcasting operator a visual or sound radio owner, “The licensee or owner, any stations, agents employees station or network or defamatory any operator, any damages not licensee or shall be hable for part published in or as a or sound statement uttered visual or'matter or owner, operator, agent broadcast, by or radio one other than such licensee or thereof, complaining alleged proved employee or unless shall licensee, owner, operator agent employee, party, has failed or such that such prevent the or utterance of such statement to exercise due care to broadcast; in such or matter appellant It that neither the name of charged by person connections with nor such person’s libelous statements making alleged. appellant in the Information contained briefs to effect that the speaker individual, of the libelous matter was a who was alleged private who appellee, personally purchased a political opponent in advance. appearance television time and advertised pleading under attack. facts are not These published libelous alleges appellant specifically matter.
549 The appellant argues that the under above statute visual broad- station is not casting for any liable if the defama- damages, alleged tory station, statements are made by one not connected the with unless the station failed to exercise due care to prevent pub- exists, lication of such statements. Where this situation appel- contends, lant action, the action is and not negligence action a libel Publications, Inc., citing Beyl Capper 305 P. 2d 817.
The answer to the simple appellant’s argument on this is point court, discretion, trial in the exercise of its power of over- ruled No. paragraph 1 of its motion to make definite and certain on the ground show, that the appellant defense, could as a matter that the person making the statements not was connected with the station, and due care had been exercised. As the petition now stands, it charges that appellant, includes telecasting station, its made the agents employees, libelous statements. As such, 60-746a, the provisions of have no On supra, application. this point court’s did not affect ruling prejudically the appel- lant’s rights. substantial 4 of motion to make and certain
Paragraph No. definite seeks to require the appellee allege special damage. items The appellant concedes that unless its No. 1 of motion paragraph sustained, in which event the action would of be a necessity negli- statute, gence action allegation special damages under the circumstances, therefore, would not be required. Under the this paragraph appellant’s motion has no merit.
Paragraph No. 2 and 3 of the paragraph No. motion appellant’s are related. closely We shall first consider No. which paragraph asks of actual malice on appellee required allege acts part of appellant. to which point motion is directed con- paragraph cerns communications which are conditionally privileged alleged to be defamatory.
This court has held article in a printed which has newspaper, officer, relation wholly official conduct of a and does private not reflect character nor his upon assail the integrity motives, conditionally not privileged, will an action support libel, true, on his if notwithstanding may it was good faith —without actual malice. To in an published prevail circumstances, action under such is required brought *6 to plead prove express malice. Malice presumed is not from the false and character of injurious it publication, may although used, be inferred from the is if it of a language disproportionate, exaggerated and sensational character. Otherwise it made must be to extrinsic by evidence. Whether the used in appear language a is in a to particular case itself such nature as show on its face that it evidence to actual malice tending ques constitutes show is Greason, v. tion to be determined the court. (Carver of law 96, 177 104 Kan. Pac. 539.) doubt has of de- expressed any publication
Although it said that abso- absolutely may matter is famatory privileged, to cases in recognized is which privilege applying public lute complete justice requires immunity, service or the administration of the occasion judicial proceedings, as in executive and legislative, for those as for the engaged not so much immunity being for the Haldeman-Julius, v. 149 (Baker of the welfare. promotion 1065.) P. 2d Kan. 88 is a communication made conditionally publication privileged
A excuse, facie, for its prima a legal which furnishes on an occasion some additional fact is is unless utterance; which privileged, preclude the occasion as to the character of so shown which alters Haldeman-Julius, v. supra, excuse. (Baker a legal it from being p. 565.) Greason, Pac.
In Carver concerning in an article his libel for damages to recover sought demurrer defendant’s attorney. county activities as court the ruling appeal On sustained. was opinion: in the reversed, stated being it was trial court judicial aof an account that the article contained “The defendant contends false, publication was it, upon if and that even proceeding, comment with comments extended portions and the of the article privileged. The narrative court, petition, must be place beyond and the considerably what took charged falsity article. entire present purposes, as true for taken charged. injure plaintiff were specific intent this, malice and Besides face of privilege out can not be made from the defense is that The result 641.) (p. petition.” involving in cases malice pleading with respect The Kansas law requires statements of alleged defamatory privilege conditional statements that the a naked conclusion pleading more than made. maliciously The distinction as to the proper and improper pleading malice is best illustrated in Baker v. Haldeman-Julius, supra, where it was said in the opinion: though “Even it offending assumed the disclosed the article published was might under such prima circumstances that it be said to be facie conditionally privileged, clearly appears that the truth of the article in all its
parts denied, specifically alleged and it was made ‘deliberately, willfully, maliciously recklessly’ pur- and ‘for the deliberate pose injuring plaintiff’s reputation, standing honesty integrity,’ Perhaps etc. help, the adverbs did allegation but the other is sufficient to charge express and willful intent to harm —an evil intent. The demurrer admits allegations. (p.566.) these
A recent case upon which the appellant relies is Stice v. Beacon Newspaper Corporation, 340 P. 2d Kan. 76 A. L. R. 2d 687.
The court there reiterated rules heretofore stated and applied them to the A alleged. facts resort to the and abstract briefs in case, that in which are on file the state library, discloses that the petition nowhere that the statements of a alleged nature defamatory were of the purpose injuring petition made the plaintiff. alleged falsely, the and publication maliciously wrongfully charges, accuses, contains and to the statements imputes plaintiff that impute criminal; is a dishonesty he statements that his impute affecting pro- law; fession as an at that attorney statements tend to him bring into in in the estimation of the the disrepute people where community lives; confidence; he statements that tend to him of public deprive statements of qualifications that leave an of the lack his imputation to be a It that such recitals in judge; etc. must be observed the of petition the the statements. merely allege effect it the is said: In the brief in Stice case appellee’s not, any place allege publications petition, in that the “Plaintiff does his injure plaintiff, were made with an or intention harm or is active desire nor any might language there a desire be inferred. In from which such the allegation allegations, express such factual there is no malice absence of and petition allegation, the does not state a cause of in the absence of such an added.) (Emphasis action.” said in the opinion: this court passing upon foregoing, In petition alleges remaining question plaintiff’s amended “The is whether evil-mindedness, harm on the defendant. actual or intent to malice— they Giving allegations petition all inferences to which are the amended alleged entitled, Although plaintiff several times conclude that does not. we it ‘maliciously’ ‘wrongfully’ printed there published are the articles were and and allegations actual malice evil-mindedness with intention or no factual harm,. merely upon Stand- a of law which is based facts. Malice is conclusion ‘maliciously’ ‘wrongfully’ alone, ing allegations and are mere conclusions. qualified constituting privi- petition a libel action facts a Where a discloses lege necessitating pleading of such com- actual malice to render a thus actionable, mere it has been held that words munication a averment (53 malicious, published S., is not sufficient C. and printed Libel J. ‘maliciously’ 166b, 262). denunciatory p. Slander, The use of adverbs such as § ‘wrongfully’ plead not suffice to a cause of action where the will and demurrer, constituting qualified privilege. facts To withstand discloses allege constituting plaintiff the ultimate facts actual malice. must 67.) (p. herein discloses that state- Assuming offending under such circumstances that it be said might ment was published privileged, conditionally clearly appears it prima facie denied, and of the statement all its parts spe- truth was made “maliciously” cifically alleged as a citizen and ruining reputation plaintiff’s “for purpose capacity, exposing elected and in official businessman hatred, and ridicule for the contempt, herein confidence and to em- him of public of depriving further purpose him publicly.” barrass under “maliciously” our the word law would constitute a
While insufficient to overcome conditional conclusion privilege, sufficient in that they charge the other are allegations express *8 to evil intent. in intent annotation injure (See, and willful —an 696, “Sufficiency plaintiff’s allegations 2d entitled in A. R. 76 L. Therefore, malice.”) defendant’s action as to defamation in that the did point allege determined court properly intent. evil actual malice —an recent United over the States Supreme expressed is
Concern [Mar., Company Times v. Sullivan New York Court decision 686, 254, Ed. 2d 84 S. Ct. 11 L. 710. This 376 U. S. 1964] in In the change Kansas law. require any opinion does decision said: the court power a State’s to today delimits award Constitution “We hold against by public brought officials critics of their damages in actions for libel action, requiring proof the rule of actual such an this is Since conduct. official apparently requires proof law of actual While Alabama applicable.
malice general damages, damages where con- punitive are award for an malice presumption is a inconsistent with the fed- Such presumed.’ malice cerned escape presumptions is not a means of from power create ‘The eral rule. Alabama, showing restrictions,’ Bailey 219 ‘the v. U. S. constitutional
553 required privilege presumed of malice for the forfeiture of the is not but is a by proof plaintiff. Fox, 134, matter for . . .’ Lawrence v. 357 Mich 146, 719, (1959). (p___) N. 97 W. 2d 725 . .” . The court also said its opinion: guarantees require, pro “The think, constitutional a federal we rule that public recovering damages defamatory
hibits a official from for a falsehood relating proves to his official conduct unless he that the statement was made is, knowledge with ‘actual malice’—that with that it false or was with reckless disregard of rule, it was false whether or not. An oft-cited statement of a like adopted by courts, which has been number state is found in the Kansas MacLennan, 711, (1908). case of Coleman v. 98 281 . . P. (P---) The opinion then reviews the Coleman case and quotes written Burch opinion by in the following language: Justice Kansas, Supreme by appeal opinion “. On in an Court of Justice Burch, (78 P., Kan., 286): reasoned as at 98 follows “ consequence people ‘It is of the utmost should the char- discuss qualifications suffrages. acter importance of candidates their The society vast, advantages the state and to of such discussions is so and the de- they great, rived are so more than counterbalance the inconvenience of private may involved, persons injury whose conduct and occasional to the yield reputations welfare, public although of individuals must at times may great. injury public publicity great, such benefit from is so injury small, private the chance of so character that such discussion must be privileged.’ court sustained the trial court’s “The as a thus instruction correct statement law, saying: “ gives privilege, ‘In qualified such case the occasion rise to a to this any claiming one to be defamed extent: the communication must show go privilege great variety actual malice remediless. This extends to a subjects, concern, public men, and includes matters of and candidates Kan., for office.’ 78 at 723.” In view of our conclusion that actual malice has been alleged, conditional thereby overcoming the afforded privilege the appellant, 2 consideration of No. of the motion to paragraph make definite and certain becomes immaterial. The allegations the petition, statement, excerpt defamatory includes an are not so the true nature of and uncertain that indefinite is not charge City Coffeyville, Kan. (Mead apparent. P. 2d 711.) *9 as to develop what eventually
Should an issue defamatory state- made, be determined answer must the the evidence ments at the trial.
The appellant’s motion to to strike seeks have stricken from the all allegations reference to making the as the appellee owner and of a proprietor certain retail as grocery store identified Market, and Kennedy’s all reference to him aas businessman. The motion also to have stricken sought allegations relating exemplary or punitive damages.
It the trial cannot said court abused the exercise of its power of discretion in the motion to strike. overruling If appellee trial, actual malice proves punitive damages may be awarded. appellee proprietor Reference of a retail store grocery does and as a businessman not alter the fundamental character of that he defamed as a charges has been pleading, public neither add to nor detract from the allegations plead official. These are no to indicate that the claimed defama allegations There ing. appellee’s used in the related conduct tory words Lawler, v. on business. carrying grocery (Koerner or abilities 318, 322, 304 2dP. 926.) 180 Kan. only demurrer that the appellant charges peti-
The general sufficient to constitute cause action not state facts tion does made The attack upon pri- the appellant. against trial court erred in ruling upon marily ground upon motions. foregoing stated, court over- properly heretofore reasons For the to the petition. ruled the demurrer is affirmed. court of the lower
The judgment that jurisdiction It is settled in well dissenting: J., Fatzee, have qualified privilege stations television newspapers news, matters involving open all current telecast as publish interference, and matters justify police law which violations crime, commission regarding inquiries with connection con- upon reflect individuals may the publication though even v. (Beyl public disgrace Capper them into bring tend to cerned and 817, and 525, 2d Stice Beacon 305 P. Inc., Publication, 180 Kan. 396, 2d R. 340 P. A. L. Corporation, Newspaper official, article is a public the subject where 2d 687), his fitness as affects character this private much so scrutiny discussion of public latitude a wider subject to office Corpo- v. Beacon Newspaper than (Stice citizen of a private ration, supra).
In my opinion, district court erred in failing to sustain para- graph two the appellant’s motion would have required plaintiff-appellee attach the complete full text of the statement alleged have publicized on February and which he contends constituted defamatory Only statement. when the full text of the statement is attached to the can it be determined whether the article in question was qualifiedly as fair privileged being a comment on matters in connection with a grand jury investigation regarding the commission of crime cer- tain officialsin county Crawford County.
I would reverse the judgment with to require directions the plain- tiff to attach to the full text of the It is statement. obvious from a libelous, casual of the statement reading alleged official investigation of some character was conducted being County, Crawford which revealed plaintiff had violated criminal statutes the state as a county commissioner. The question whether has the ultimate plaintiff alleged facts con- evil-mindedness, malice, stituting actual or a wicked purpose should injure only inquired into after deter- mined a matter of law that the is or is not qualifiedly privileged.