Buckwalter v. Gossow

• Citation: 75 Kan. 147,88 P. 742
• Decision Date: 05 January 1907
• Docket Number: 14,858
• Parties: LAURA BUCKWALTER v. G. W. E. GOSSOW et al
• Court: United States State Supreme Court of Kansas

88 P. 742

75 Kan. 147

LAURA BUCKWALTER v. G. W. E. GOSSOW et al

No. 14,858

Supreme Court of Kansas

January 5, 1907

Decided January, 1907.

Error from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIBEL--Publication of a Letter. In a civil action for libel an admission of the defendants in their answer that they mailed the alleged libelous matter to the plaintiff in a sealed envelope addressed to her does not admit the publication of the libel.

2. LIBEL--Burden of Proof. In such action the burden of proving the publication of the alleged libel is upon the plaintiff, and proof that she received it from her husband without showing how it came into his hands is not sufficient.

Adams & Adams, for plaintiff in error.

Kos Harris, and V. Harris, for defendants in error.

OPINION

SMITH J.:

The plaintiff sued the defendants for libel. The defendants in their answer alleged that they constitute the board of trustees of a church organization, and as such investigated charges against the plaintiff, who was a member of the church, and as such trustees passed a resolution dismissing her from such membership; that they caused the clerk of the board to send her a letter enclosed in a sealed envelope and addressed to her, informing her of the action of the board and that she was dismissed "for conduct unbecoming a Christian lady."

Upon the trial of the action the plaintiff introduced her evidence and rested her case. The defendants demurred thereto, the demurrer was sustained, and judgment was rendered against her for costs. The plaintiff brings the case here for review.

The question is presented whether the written matter was libelous per se, and, also, whether it was or was not a privileged communication. In the conclusion we have reached, however, it is not necessary to determine either of these questions.

"The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication, even though the matter does actually reach the hands of a third person, where this is not intended nor reasonably to be expected by the sender." (18 A. & E. Encycl. of L. 1017.)

"Sending a libelous communication to a married woman respecting herself, enclosed in a sealed envelope, is not a publication of the libel." (Caroline Wilcox v. Isaac S. Moon , 64 Vt. 450, 24 A. 244, 15 L. R. A. 760, 33 Am. St. Rep. 936.)

We have adopted the rule as above stated. (Lyon v. Lash, 74 Kan. 745, 88 P. 262.) But this is not the rule in criminal prosecutions for libel, where the gravamen of the offense is as much the provoking of the defamed person to wrath as is the effect of the publication upon his relations to the public. (Gen. Stat. 1901, § 2271.)

The wrath or personal indignation aroused in the defamed cannot be computed or compensated in damages, although the wrong-doer may be punished by the state for his wrongful act. So an assault from which no public humiliation and no actual injury occurs other than to the feelings of the assaulted...