Kennedy v. Mid-Continent Telecasting, Inc.

• Citation: 193 Kan. 544,394 P.2d 400
• Decision Date: 23 July 1964
• Docket Number: MID-CONTINENT,No. 43565,43565
• Parties: Verne KENNEDY, Appellee, v.TELECASTING, INC., a Corporation, Appellant.
• Court: United States State Supreme Court of Kansas

Page 400

394 P.2d 400

193 Kan. 544

Verne KENNEDY, Appellee, v. MID-CONTINENT TELECASTING, INC., a Corporation, Appellant.

No. 43565.

Supreme Court of Kansas.

July 23, 1964.

Syllabus by the Court

1. While a ruling on a motion to make a pleading definite and certain is not ordinarily an appealable order, the propriety of the order overruling the motion will be considered on review of an order overruling a general demurrer to the same pleading where appeal has been duly perfected.

2. A ruling on a motion to make definite and certain ordinarily rests in the sound discretion of the trial court, and unless such ruling constitutes an abuse of sound judicial discretion and prejudices a substantial right, it will not be reversed on appeal.

3. In a libel action charging that defamatory statements concerning a public official were made over the defendant's telecasting facilities, the trial court in ruling upon a motion to make definite and certain refused to require the plaintiff to state who made the statements alleged to be defamatory, and on appellate review it is held: The trial court did not abuse the exercise of its power of discretion because the defendant was entitled to show as a matter of defense that a private individual made the statements and not the defendant, thereby calling for application of the provisions of G.S.1961 Supp. 60-746a.

4. Where an alleged defamatory statement is made which has relation wholly to the official conduct of a public officer, and does not reflect upon his private character nor assail the integrity of his motives, it is conditionally privileged and will not support an action on his part for libel, notwithstanding it may not be true, if it was published in good faith-without actual malice. To prevail in an action brought under such circumstances, the plaintiff is required to plead and prove actual malice.

5. A conditionally privileged communication is a publication made on an occasion which furnishes a legal excuse, prima facie, for its utterance; and which is privileged, unless some additional fact is shown which so alters the character of the occasion as to preclude it from being a legal excuse.

6. In an action such as that described in Syllabus p3, it is held: The trial court in ruling upon a motion to make definite and certain did not err in its failure to require the plaintiff to allege acts of actual malice on the part of the defendant for the reason that the petition under attack did allege actual malice by stating the defamatory statements were made 'for the purpose of ruining plaintiff's reputation asd a citizen and business man and in his official elected capacity, and exposing the plaintiff herein to public hatred, contempt, and ridicule and for the further purpose of depriving him of public confidence and to embarrass him publicly.'

7. In a libel action charging that defamatory statements concerning a public official were made over the defendant's telecasting facilities, it is held, on appellate review, that the trial court did not err in overruling a motion to make definite and certain; in overruling a motion to strike; and in overruling a general demurrer to the petition.

H. Gordon Angwin, Pittsburg, argued the cause, and John B. Towner, Pittsburg, was with him on the brief for appellant.

J. John Marshall, Pittsburg, argued the cause and was on the brief for appellee.

SCHROEDER, Justice.

This is a libel action by Verne Kennedy, a county commissioner of Crawford County, Kansas, (plaintiff-appellee) against Mid-Continent Telecasting, Inc. (defendant-appellant) for a publication carried over the defendant's television station on the 19th day of February, 1962. The petition was filed on the 9th day of May, 1962, and was attacked by a motion to make definite and certain and by a motion to strike both of which were overruled. Thereafter, the defendant's demurrer was overruled and appeal has been duly perfected by the defendant from each of the foregoing orders.

The question is whether the trial court committed reversible error in overruling either of the foregoing motions and/or the demurrer.

The appellee's petition, omitting the caption and the beginning paragraph, alleges:

'I. That he is a resident of and his correct post office address is 614 West Jefferson, Pittsburg, Kansas; that on the date hereinafter mentioned and at the present time, he was and is the duly elected, qualified and acting County Commissioner in and for the Third Commissioner District of Crawford County, Kansas, and also is the owner and proprietor of a certain retail grocery store identified as Kennedy's Market, being located in Pittsburg, Kansas; that the defendant, Mid-Continent Telecasting Inc., was and now is a corporation organized and existing under and by virtue of the laws of the State of Kansas with its principal place of business being located in Television City, Cherokee County, Kansas; that said defendant is engaged and licensed in the telecasting business and operates and owns a television station located in Cherokee County, Kansas, said station being identified as KOAM-TV.

'II. That on or about the 19th day of February, 1962, at or about the hour of 5:40 o'clock P.M., for the purpose of ruining plaintiff's reputation as a citizen and business man and in his official elected capacity, and exposing the plaintiff herein to public hatred, contempt, and ridicule and for the further purpose of depriving him of public confidence and to embarrass him publicly, the said defendant herein did maliciously publicize certain false and untrue statements concerning this plaintiff, said false and untrue statements being disseminated over its telecasting facilities; that at the time of the dissemination of said false and untrue statements, the defendant corporation, its officers, agents and employees, knew the same to be false and untrue; that the said material which was telecast and disseminated over defendant's telecasting facilities is hereto attached, marked 'Exhibit A' and is hereby made a part hereof.

'III. By reason of the defendant's publication and the dissemination of material above referred to throughout the State of Kansas and elsewhere, plaintiff has been deprived of public confidence, has been subjected to embarrassment, harassment, humiliation, anxiety and mental suffering and has been held in contempt and has been the subject of ridicule and scorn, all to his damage in the sum of One Hundred Thousand and No/100 Dollars ($100,000.00).

'IV. That by reason of the defendant's malicious, false and untrue publication of the material above mentioned, this plaintiff is entitled to and should be awarded as exemplary or punitive damages the sum of One Hundred Thousand and No/100 Dollars ($100,000.00).

'WHEREFORE, this plaintiff prays judgment for compensatory damages in the sum of One Hundred Thousand and No/100 Dollars ($100,000.00), and for punitive or exemplary damages in the sum of One Hundred Thousand and No/100 Dollars ($100,000.00), or the total sum of Two Hundred Thousand and No/100 Dollars ($200,000.00), and for the costs of this action.' (Emphasis added.)

Exhibit 'A' attached to the petition and made a part thereof reads:

'CITIZENS OF CRAWFORD COUNTY:

'* * * Now who is to be investigated? And why are they to be investigated?

'The official acts of D. J. Saia and Verne Kennedy, as County Commissioners of Crawford County, and Keeth Jones, as County Attorney, are among those sought to be investigated. * * *

'D. J. Saia and Verne Kennedy have been collecting mileage at an illegal rate per month ever since they have been in office, and in some instances even their meals have been paid by the County.

'As shown here, Kennedy's mileage and meals were $153.20, the meals being $30.00.

'As shown here, Saia's mileage and meals were $150.55, the meals being $22.50. We have certified copies of these vouchers and these are unlawful claims against the county. For county officials to acquire property, either directly or indirectly, at a judicial tax sale is a criminal offense. * * *

'At the same tax sale Charles Wyman, Kennedy's father-in-law, bought six lots in College View addition to Pittsburg, and six months later deeded the land over to Kennedy so he can build a trailer court. Here you have Kennedy and Saia dealing in tax sales. I have here in my hand the certified copies showing these purchases.

'* * *. The County Commissioners who voted for Gendusa's appointment are subject to prosecution for an unlawful claim against the county.

'On December 7, 1960, W. T. Niggemann, County Engineer of Crawford County, testified under oath before the Board of Tax Appeals that the budget had been exceeded by $21,178.25.

'He further testified that five extra men were employed in Commissioner Goodison's district, at a cost of $1,988.60; that thirteen men were employed in Commissioner Saia's district, all of which cost $2,408.00, and that twenty-four men--extra men--were employed in Commissioner Kennedy's district, which cost $13,251.70.

'Keep in mind that 1960 was an election year. Also here is the total amount that was spent--$17,648.30, for extra labor alone, not counting materials used by these extra men.

'All these facts and figures are shown in this official transcript of the hearing, which I hold in my hand.

'All this exceeding the budget was done at the direction of the Board of County Commissioners.

'The County Commissioners of Crawford County who voted to exceed the budget are subject to criminal prosecution for violating the budget law and cash basis law of the State of Kansas. * * *

'I have in my hand a certified copy of the voucher in the office of the County Clerk of Crawford County showing these facts to be true.

'Now keep in mind that D. J. Saia and Verne Kennedy had to and did approve the allowance of the claims as above set forth against the County.

'These two Commissioners at all times constituted a majority of the Board of County Commissioners. No...