86 Kan. 387 | Kan. | 1912
The opinion of the court was delivered by
O. T. Wood recovered a judgment against W. A. Custer in an action for slander, and the defendant appeals. The petition alleged that the defendant had made statements (among others) to the effect that the plaintiff had been stealing cattle for twenty years. .The defendant in his answer denied making the specific statements attributed to him, but added that in conversation with some of the persons named in the petition he had said in substance that it was generally believed that the plaintiff had been guilty of the matters referred to; he also alleged that the plaintiff’s general reputation for truth and veracity and for honesty had been such that the statements charged, if made, would not have injured him.
The defendant produced witnesses who testified that at the time the defamatory words were alleged to have been spoken the plaintiff’s general reputation for honesty and fair dealing and integrity was bad. He then offered to show by the same witnesses that at the time
The suggestion is made that as the defendant pleaded that the plaintiff’s reputation for truth and veracity and honesty was bad, it was proper to confine the evidence to the words there used. To hold this would be to construe the pleading too narrowly. The plaintiff’s
An argument has been made that if the rejected evidence had been admitted the result would necessarily have been the same, on this theory: If the jury had believed the witnesses who swore that the plaintiff had a bad reputation as to honesty, fair dealing and integrity, they would not have awarded the damages they did — $1000; therefore the jury, must have discredited the witnesses; and further testimony from them that the plaintiff was reputed to be a cattle thief would not have influenced their judgment or affected the verdict. The amount allowed by the jury was not itemized, and it does not appear how much of it was allowed for actual, and how much, if any, for punitive damages. As already suggested, the jury may have believed that the plaintiff had not a good reputation for honesty, fair dealing and integrity, and still may have found that he had suffered a serious injury from having been charged with stealing cattle, and that the defendant deserved punishment for having' wrongfully accused him of it.
The defendant in effect offered to testify that the statements he had made about the plaintiff were based upon' certain matters that he had heard; that what he said he believed, and that he had no purpose to injure the plaintiff. This evidence was rejected. We think it should have been admitted, not of course as a justification, or in mitigation of the actual damages, but as bearing upon the question of actual malice, as affecting
“Defendant may show in mitigation of (exemplary) damages that the libel or slander was published under an honest conviction of its truth arising from probable grounds of suspicion known to him at the time of publication, or that he otherwise acted in good faith and without malice.” (25 Cyc. 420.)
“Where plaintiff has introduced evidence of express malice, defendant may offer in rebuttal facts and circumstances or other evidence tending to show good faith on his part, or want of hostility toward plaintiff, as for instance by showing the entire article or conversation in which the defamatory matter was published, or the sources of defendant’s information.” (25 Cyc. 500.)
Where the mental attitude of a witness is material he may testify concerning it (Bice v. Rogers, 52 Kan. 207, 34 Pac. 796), and this rule is frequently applied in slander cases (Note, 23 L. R. A., n. s., 392). It is argued that since in his answer the defendant denied using the words áttributed to him, and did not assert that they were true, he ought not to be allowed to show anything to palliate his offense, if the jury find he did say them; that it is not material whether he said something entirely different,- or how he came to do so. It may not have been necessary or even proper for the defendant, in addition to a general denial, to plead that while he had not himself accused the plaintiff of stealing cattle, he had said that others made such charges. But when he took the stand in his own behalf he could hardly stop with a mere, denial. It was natural and practically essential that he - should tell j'ust what he had said on the occasions referred to. Conceding that his version was incorrect, it was near enough like that
Objections are made to the instructions upon the ground that the issues with regard to punitive damages, and the bearing of evidence thereon, were not made sufficiently clear. No more specific instructions were asked, but as the appellee in his brief contends that punitive damages may be allowed on the basis of implied malice it is proper to pass upon the question so presented. The state of the law on the subject is exhibited by these quotations:
“If express malice on the part of the defendant is shown, exemplary or punitive damages are proper. So if the defamation was recklessly or carelessly published, punitive damages may properly be awarded as well as where the defamation was induced by the personal ill will of defendant. On the other hand there are many authorities to the effect that if express malice or recklessness equivalent thereto is not shown on the part of defendant, exemplary damages can not be awarded. But in other jurisdictions it is held that where malice exists exemplary damages may be given, and that it is immaterial whether the malice is actual or implied in law.” (25 Cyc. 536.)
“In a good many cases it has been held, that an award of punitive or exemplary damages may be based merely upon the malice which the law will imply from an unauthorized and unjustifiable publication or utterance of defamatory words. But the great weight of authority is otherwise, and supports the view that in order for such a recovery to be proper there must be*393 some proof of actual or express malice, or at least of such recklessness or carelessness on the part of the defendant as is equivalent to an actual intent to violate the rights of others.” (18 A. & E. Encycl. of L. 1093.)
Both the works quoted place Kansas in the category of the states that deny punitive damages except upon a showing of express, as distinguished from implied, malice, upon the strength of Walker v. Wickens, 49 Kan. 42, 30 Pac. 181. The classification is correct. The implied malice referred to in the case cited is malice inferred from various circumstances. In this jurisdiction punitive damages are not allowed merely upon the basis of the malice implied by the law from the intentional doing of a wrongful act.
Complaint is made of the overruling of a motion to. make the petition more definite and certain, but its allegations seem sufficiently specific.
The judgment is reversed and the cause remanded for a new trial.