Bradshaw v. Swagerty
| Decision Date | 15 April 1977 |
| Docket Number | No. 48321,48321 |
| Parties | Rodney BRADSHAW, Appellant, v. Daniel L. SWAGERTY, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Unless defamatory words are slanderous per se they are not actionable unless the plaintiff pleads and proves special damages.
2. Slander per se is limited to statements falling into four categories: imputation of a crime; imputation of a loathsome disease; words reflecting on plaintiff's fitness for his office, profession or trade; and the imputation of unchastity in a woman.
3. Words of general abuse, regardless of how rude, uncouth or vexatious, are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages.
4. An imputation of bastardy or illegitimacy is not slanderous per se.
5. The term 'nigger' is one of insult, abuse and belittlement, but is not slanderous per se.
6. The tort of 'outrage' requires extreme and outrageous conduct on the part of the defendant. It is for the court in the first instance to determine whether the defendant's conduct was so outrageous as to permit recovery.
7. Liability for 'outrage' clearly does not extend to mere insults, indignities threats, annoyances, petty oppressions, or other trivialities.
8. In an action for slander and outrage based upon insults hurled in the course of a heated argument it is held, the trial court properly entered summary judgment for the defendant on both counts.
B. A. Lighfoot, Jetmore, for appellants.
B. G. (Skip) Larson and Max Eugene Estes, Williams, Larson, Voss, Strobel & Estes, Dodge City, for appellee.
Before REES, P. J., and FOTH and SWINEHART, JJ.
Plaintiff Rodney Bradshaw brought this action for slander and outrage, with both counts arising out of a single verbal encounter with the defendant, Daniel L Swagerty. On the basis of depositions and answers to interrogatories the trial court rendered summary judgment for the defendant, and plaintiff has appealed. There is no claim that discovery was not complete. The question, therefore, is whether, taking plaintiff's evidence in the light most favorable to him, he had a submissible case under either of his theories.
The defendant is a lawyer who, in March, 1975, was retained by the Southwest Grain company to collect accounts allegedly owed by plaintiff and his brother Paul. Defendant was also Hodgeman county attorney. On March 19 plaintiff appeared at defendant's office in response to a collection letter inviting a discussion of the accounts. Plaintiff asserted the defense of infancy, and threatened countersuit if sued. He also helped himself to candy from a dish in defendant's office, much to defendant's irritation. The discussion grew heated, and descended to the name-calling which forms the basis of plaintiff's suit.
At some point during the discussion plaintiff's brother Paul appeared. Although Paul apparently took no active part in the encounter, it was to him that the allegedly slanderous words were first published. According to plaintiff's deposition, in the course of the argument defendant at one time or another called him a 'nigger' and a 'bastard.' Plaintiff is a young black man, of concededly legitimate birth. (The term 'knot-headed boy' was also pleaded, but its use does not appear in the depositions.)
Defendant admitted using the term 'bastard,' but denied that he 'directly' called plaintiff a 'nigger.' In any event, when the two brothers refused to leave defendant summoned a deputy sheriff, who escorted them out. The deputy returned to defendant's office and asked what had happened. Defendant's recounting of the events resulted in the second publication of the alleged slander.
Do the terms used (assuming all of them were) constitute actionable slander? We note first that plaintiff pleaded only that he had suffered 'humiliation, embarrassment and loss of reputation.' He testified that 'the incident in the defendant's office had not affected his employment, but had affected his relations with others in the community.' Thus he neither pleaded nor offered to prove special damages. Barring special damages plaintiff has no cause of action for slander unless the words spoken are slanderous per se. Bennett v. Seimiller, 175 Kan. 764, 267 P.2d 926.
At common law slander per se was limited to four categories: imputation of a crime; imputation of a loathsome disease; words reflecting on plaintiff's fitness for his office, profession or trade; and the imputation of unchastity in a woman. Prosser, Law of Torts (4th ed.), pp. 754-760; 50 Am.Jur.2d, Libel and Slander, sec. 10; 53 C.J.S. Libel and Slander § 14. And cf., Restatement (Second), Torts, sec. 569 (Tent. Draft No. 11).
No single Kansas case has adopted the common law categories in toto, but each of the four has been recognized : Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P.2d 124 (); Bennett v. Seimiller, supra (); Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P.2d 1063 (unfitness for employment); Cooper v. Seaverns, 81 Kan. 267, 105 P. 509 (unchastity).
Plaintiff offers no attority from this jurisdiction or any other holding the epithets in question here to be slanderous per se. The annotation appearing at 53 A.L.R. 548 indicates that an imputation of bastardy or illegitimacy is generally held not slanderous per se, although it might be actionable where it affected property rights acquired through inheritance. As to the closely allied epithet 'son of a bitch,' Connecticut's highest court, after finding that a charge of police brutality was not actionable, went on to say:
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