Koerner v. Lawler, 40208

• Decision Date: 08 December 1956
• Docket Number: No. 40208,40208
• Citation: 304 P.2d 926,180 Kan. 318
• Parties: Robert O. KOERNER, Appellant, v. Frank LAWLER, Appellee.
• Court: Kansas Supreme Court

Page 926

304 P.2d 926

180 Kan. 318

Robert O. KOERNER, Appellant, v. Frank LAWLER, Appellee.

No. 40208.

Supreme Court of Kansas.

Dec. 8, 1956.

Rehearing Denied Jan. 4, 1957.

Syllabus by the Court.

1. In an action for libel per quod the general rule is that the defense of privilege should be specially pleaded when the fact of privilege does not appear on the face of the petition.

2. In order to state a cause of action for libel per quod, as distinguished from libel per se, the special damage resulting from the alleged defamation must be alleged, a general allegation of damage being insufficient.

3. In an action to recover for libel, allegations of a petition are examined and considered, and it is held: (1) The fact of privilege does not, as a matter of law, appear on the face of the petition; (2) the libel alleged constitutes libel per quod as distinguished from libel per se; (3) the allegations concerning damage resulting from the alleged defamation are sufficient to withstand a demurrer, and (4) the demurrer to the petition was erroneously sustained.

Otto J. Koerner, Wichita, argued the cause, and Benj. F. Hegler, Lee R. Meador and John N. Stice, Wichita, were with him on the briefs for appellant.

Arnold C. Nye, Newton, argued the cause, and J. Sidney Nye, Newton, was with him on the briefs for appellee.

PRICE, Justice.

This is an action to recover damages for libel based upon statements contained in a letter written by defendant and which was publicized as hereinafter related.

Plaintiff has appealed from an order sustaining a demurrer to his second amended petition, hereafter referred to as the petition.

Because of the nature and status of the case it is considered advisable to set out the petition and letter in full. The petition reads:

'Comes now the plaintiff and for his cause of action against the defendant herein alleges and states:

'1. That the plaintiff is a resident of the City of Newton, Harvey County, Kansas.

2. That the defendant is a resident of the City of Newton, Harvey County, Kansas.

'3. That the plaintiff is a duly licensed master plumber doing business in the City of Newton, State of Kansas, and has operated said business for more than seven years; that plaintiff has enjoyed a good reputation and has operated his trade and business in a respectable and lawful manner.

'4. That on the 21st day of May, 1954, the defendant wrote a letter and mailed it to the plaintiff wherein the defendant willfully charged this plaintiff with a specific violation of the plumbing ordinances of the City of Newton, Kansas, in that defendant stated that plaintiff permitted and allowed one Mr. Bennett to do considerable work on his project under a permit issued by the City of Newton to this plaintiff, but not while accompanied by a licensed master or journeyman plumber, contrary to Section 1406 of the ordinances of the City of Newton. That the violation of said ordinance is declared a misdemeanor by the terms thereof, providing for fines and revocation of licenses; that the defendant caused several copies of this letter, a copy of which is attached hereto marked 'Exhibit A' and made a part hereof as if fully set out herein, charging this plaintiff with a violation of the ordinance to be written and mailed to each and every plumbing firm in Newton, Kansas, and caused a copy of said letter to be placed on the bulletin board in a public place for observation by the general public.

'5. This plaintiff alleges that the statements contained in said letter infer and state, without saying so in so many words, that the plaintiff herein obtained a plumbing permit for work on the Harold Bennett property at 418 Random Road; and thereafter, in violation of the city ordinances, permitted Mr. Bennett to perform work on said project while not accompanied by Mr. Koerner, a licensed plumber to whom the permit had been issued. The letter further threatens the revocation of Mr. Koerner's license, and this plaintiff alleges that said inferences and statements were untrue and without basis in fact, and that said defendant had no excuse whatsoever to publish such statements. That said letters, and copies thereof, were written and published as aforesaid by the defendant for the purpose of misleading the readers of said letters and prejudicing them against this plaintiff, and were so written and published to injure, destroy and damage plaintiff's good reputation, and to expose him to hatred, contempt, ridicule and embarrassment, and deprive him of public confidence and injure and damage his business.

'6. That by reason of the foregoing this plaintiff is entitled to general damages in the amount of $10,000.00, and punitive damages in the amount of $30,000.00.

'Wherefore, plaintiff prays judgment against the defendant herein for $40,000.00, the costs of this action, and such other relief as to the court may seem just and proper.'

The letter referred to as 'Exhibit A' reads:

'The City of Newton 130 West Sixth Street Newton, Kansas

May 21, 1954

'Mr. Robert Koerner 121 Main Street Newton, Kansas

Subject: Plumbing Violations

'Dear Sir:

'Responsible as I am to the Governing Body of Newton for the enforcement of the City's ordinances, it is my duty to bring to your attention and to the attention of all Newton plumbers violations of the plumbing ordinance, No. 1406.

'To explain the case in detail so there is no misunderstanding, let me refer to the plumbing permit for the Harold Bennett property at 418 Random Road.

'First of all, Mr. Bennett inquired whether he would be permitted to do his own plumbing and was correctly advised by the City Inspector that he could not.

'The permit was issued for the work thereafter to Koerner Plumbing and it is my information that considerable work has since been done on the project by Mr. Bennett, but not while accompanied by a licensed master or journeyman plumber.

'Therefore, I would like to call to the attention of all plumbers in Newton that permitting such work under a permit places you or your firm in a position of having the permit revoked, your license revoked, and fines for both the bonded plumber and the person who performs work on the project in the licensed plumber's absence.

'Please note Sections 1, 5, 6, 7 and 31 of Plumbing Ordinance 1406. Any further reports of such violations will be dealt with as provided by Ordinance 1406.

'Sincerely,

City of Newton

/S/ Frank Lawler

Frank Lawler

City Manager'

In addition to the order sustaining defendant's demurrer to the petition, plaintiff also specifies as error a previous ruling which struck the words 'libelous' and 'maliciously' from the original petition. In...