Ebaugh v. Miller
| Citation | 127 Kan. 464,274 P. 251 |
| Decision Date | 09 February 1929 |
| Docket Number | 27,713 |
| Parties | IONE EBAUGH, Appellant, v. LEE MILLER, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1929.
Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
LIBEL AND SLANDER--Conditionally Privileged Communications--Malice. The proceedings in an action for slander against a member of a school board considered, and held: (1) Persons who made inquiries of the member of the school board respecting conduct of a school teacher had an interest in the subject of the inquiries. (2) The member of the school board rested under a duty to respond to the inquiries. (3) The court properly instructed the jury that the statements made in response to the inquiries were conditionally privileged. (4) Under the evidence, the court properly instructed the jury that malice of the defendant toward a man whose conduct was involved with that of plaintiff, did not warrant an inference of malice toward plaintiff, and that in determining the issue of malice the jury should consider all the evidence.
W. H Carpenter, W. R. Carpenter, both of Marion, and Edwin Anderson, of McPherson, for the appellant.
James Galle, P. J. Galle, both of McPherson, F. L. Martin and James N. Farley, both of Hutchinson, for the appellee.
The action was one for damages for slander. The verdict and judgment were for defendant, and plaintiff appeals.
Plaintiff was a member of the Baptist church of her city, was clerk of the church, and was a teacher in the public schools. Defendant was a member of the board of education of the city and chairman of the committee on school buildings. In November, 1925, the janitor of the building in which plaintiff taught reported to defendant that the pastor of the Baptist church was coming to plaintiff's room after school hours and remaining until after dark. The pastor was invited to appear at a meeting of members of the school board, which was regarded as confidential. He explained that he went to the school building to do church work which required plaintiff's assistance. After the meeting he discontinued his visits--there was evidence he agreed to keep away--and it was believed the matter was at rest. In February, 1926, the janitor gave information to a member of the school board of renewed visits and of improprieties. Investigation led to a special meeting of the board on March 8. The janitor, the pastor and plaintiff were called before the board in executive session. The result was, the board decided that plaintiff should be permitted to teach the remaining months of the school year, but that she should not be reemployed.
Following the special meeting there were rumors and gossip. Plaintiff's brother, Clarence Ebaugh, heard there had been some kind of an investigation. His mother told him some of the principal things, and he went to the president of the school board for further information. The president told him something of the story, and Clarence asked if there was anyone else he could see to find out more. Clarence and defendant were friends of long acquaintance, and Clarence went to defendant "to find out the truth of the rumors he had been hearing" about his sister and the pastor. Defendant knew Clarence was plaintiff's brother. The interview was private. Clarence told defendant what he wanted to know, and defendant gave him the information defendant had acquired. The interview occurred on March 30.
J. C. Johnson's wife was a cousin of plaintiff. Plaintiff's mother told Mrs. Johnson plaintiff had lost her position in the city schools. Johnson was a resident of the city, was interested in plaintiff, and wanted her to have her place if it could be arranged. Johnson knew defendant was a member of the school board, and had been told defendant was chairman of the board. Johnson testified he went to defendant's office to talk to him concerning his duties as a member of the school board in the employment of teachers. The interview occurred about April 9, and was private. Johnson asked defendant how serious or how grave the charge was against Miss Ebaugh to justify the school board in turning her down and not giving her position back.
Defendant gave Johnson the reasons for not reemploying plaintiff. Johnson knew defendant was telling what the janitor reported he saw. At the close of the interview Johnson thanked defendant for the information, shook hands with him and departed. Johnson then went to see other members of the school board to discuss advisability of circulating a petition for plaintiff's reemployment.
Charles S. McGiffert was a trustee of the Baptist church. He heard a rumor connecting the pastor of the church with plaintiff. One of the deacons of the church asked McGiffert to see defendant about it. The deacon and the trustee went into defendant's private office, and the deacon asked defendant to tell the story to the trustee. All the ensuing conversation related to what occurred at the executive meeting of the school board. McGiffert understood that what was said at the meeting was what the janitor claimed he saw. The interview with McGiffert occurred on April 9.
The petition contained three counts, based on the interviews with Ebaugh, Johnson and McGiffert. A fourth count, based on a statement concededly privileged, was withdrawn by the court from consideration by the jury.
Defendant said to Johnson it was unfortunate for the girl, and said to plaintiff's brother that if the preacher had possessed the sense God gave a goose it would not have happened; but no evidence is abstracted disclosing any specific statement concerning plaintiff made by defendant at any one of the three interviews which was not within the fair and reasonable purview of the inquiry.
The court instructed the jury that Ebaugh, Johnson and McGiffert each had an interest in the subject to which their inquiries related, and defendant's communications to them were conditionally privileged. The petition and the brief of plaintiff present the case as if it were one of a member of the school board going about, after final action by the board, and voluntarily spreading slander. The rule of common interest, as for example,...
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