Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc.

• Citation: 214 Kan. 139,519 P.2d 682
• Decision Date: 02 March 1974
• Docket Number: No. 47145,47145
• Parties: CLEAR WATER TRUCK COMPANY, INC., and Claude Harpster, Appellants, v. M. BRUENGER & COMPANY, INC., and Maurice Bruenger, Appellees.
• Court: United States State Supreme Court of Kansas

Page 682

519 P.2d 682

214 Kan. 139

CLEAR WATER TRUCK COMPANY, INC., and Claude Harpster, Appellants, v. M. BRUENGER & COMPANY, INC., and Maurice Bruenger, Appellees.

No. 47145.

Supreme Court of Kansas.

March 2, 1974.

Syllabus by the Court

1. A motion for judgment on the pleadings pursuant to K.S.A.1973 Supp. 60-212(c) is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves.

2. A motion for judgment on the pleadings serves as a means of disposing of a case without trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted leaving no real issue to be tried.

3. Proceedings before an administrative body are quasi-judicial where its function is to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature.

4. Statements given in the course of litigtation which otherwise might serve as a basis for an action in slander or libel are privileged communications because of an overriding public interest in a free and independent judicial system, and this absolute privilege extends to parties to private litigation and to anything published relative to a matter at issue, whether it be said in pleadings, affidavits, depositions or from the witness stand in open court.

Fred A. Beaty of Beaty, Hodge & Wood, Wichita, argued the cause and was on the brief for appellants.

Albert L. Kamas of Render, Kamas & Kelly, Wichita, argued the cause and was on the brief for appellees.

Stephen M. Joseph, Wichita, of counsel for appellees.

KAUL, Justice:

Plaintiffs-appellants brought this action to recover damages which they alleged resulted from publication by defendants-appellees of allegedly libelous statements in a proceeding before the Interstate Commerce Commission. In their answer to plaintiffs' petition, defendants alleged the statements were relative to the issue involved and were filed in support of their 'Protestant's Motion to Re-Open and Protestant's Petition for Reconsideration' in the proceedings before the Interstate Commerce Commission. Simultaneously with the filing of their answer, defendants filed a motion for judgment on the pleadings pursuant to K.S.A.1973 Supp. 60-212(c). Defendants' motion was based on the ground of absolute privilege. In due course the motion was heard and sustained by the trial court. Thereafter plaintiffs perfected this appeal.

The overall issue presented is whether absolute privilege should extend to defendants' conduct as it is set out in plaintiffs' petition. A motion for judgment on the pleadings under 60-212(c), filed by a defendant, is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves and the basic question to be determined is whether, upon the admitted facts, the plaintiffs have stated a cause of action. (Tabor v. Lederer, 205 Kan. 746, 472 P.2d 209) The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter on law on the facts alleged or admitted, leaving no real issue to be tried. (Gard, Code of Civil Procedure Annotated, § 60-212(c), p. 55) The motion operates as an admission by movant of all fact allegations in the opposing party's pleadings. (1 Vernon's Kansas Statutes Annotated, Code of Civil Procedure (1973 Pocket Parts), 60-212(c), Authors' (Fowks, Harvey and Thomas) Comments)

Plaintiffs' petition incorporated by reference a decision and order of the Interstate Commerce Commission, dated June 13, 1973, and a 'Motion to Re-Open' and 'Petition for Reconsideration' filed by defendants on July 8, 1972.

From the petition and attached exhibits it appears that both plaintiff and defendant corporations operated trucking businesses. Both parties were engaged in interstate commerce as contract carriers of meat and packing house products over irregular routes. Plaintiff Claude Harpster is the chief executive officer of plaintiff Clear Water Truck Company, Inc., and defendant Maurice Bruenger is the principal stockholder and chief executive officer of defendant M. Bruenger & Company, Inc. For brevity we shall refer to plaintiffs collectively as Clear Water or plaintiffs; likewise, to defendants as Bruenger or defendants, and Interstate Commerce Commission as the Commission.

Clear Water filed an application for a permit and Bruenger appeared as a party protestant before the Interstate Commerce Commission. With the 'Motion to Re-Open' after granting of Clear Water's permit, Bruenger attached a statement of one Marion R. Hoover as a supporting exhibit. Hoover is traffic coordinator for a Liberal, Kansas, meat packing house whose freight business was a subject of the Commission proceedings. Hoover's statement was to the effect that testimony given by Claude Harpster, under oath, in the Commission proceedings was false.

Plaintiffs alleged that defendants prepared Hoover's statement, submitted it to him, that he signed it without reading it; that defendants then caused it to be notarized; and that the statement was published before the Commission by defendants for the purpose of accusing Claude Harpster of falsely testifying before the Commission Examiner. Plaintiffs alleged that as a result of the solicitation and publication of the false and libelous statement both plaintiff Harpster and plaintiff Clear Water suffered substantial damages. Plaintiffs in their petition alleged a series of events culminating in the filing of the statement; however, no claim is made that any of the activities prior to the filing of the Hoover statement would constitute a cause of action.

In their answer defendants admit filing before the Commission their 'Protestant's Motion to Re-Open' with the supporting verified statement of Hoover. In their motion for judgment on the pleadings defendants alleged that their action in preparing and filing the motion with the supporting verified statement before the Commission constituted the preparation of pleadings before a judicial body; that the contents thereof enjoyed an absolute privilege and; thus, could not be made a basis for an action for damages resulting from an alleged libel and slander. No issues of fact material to the defense of absolute privilege were left in dispute. Thus, the action was in proper posture for disposition on a motion for judgment on the pleadings under K.S.A.1973 Supp. 60-212(c). The basis of the trial court's judgment was that since the libelous statements were published in the course of a judicial proceeding by parties to the litigation, recovery for damages which may have been suffered, is foreclosed by the rule of absolute immunity.

The defense of absolute immunity in defamation actions has long been recognized in virtually every American jurisdiction. The premise upon which the rule is based is succinctly state by Arthur B. Hanson in his work (Vol. 1) entitled 'Libel and...