Koontz v. Weide

• Decision Date: 08 July 1922
• Docket Number: 23,853
• Citation: 111 Kan. 709,208 P. 651
• Parties: JACK DALE KOONTZ, by L. H. KOONTZ, His Next Friend, Appellee, v. LENA WEIDE, Appellant
• Court: Kansas Supreme Court

208 P. 651

111 Kan. 709

JACK DALE KOONTZ, by L. H. KOONTZ, His Next Friend, Appellee, v. LENA WEIDE, Appellant

No. 23,853

Supreme Court of Kansas

July 8, 1922

Decided July, 1922.

Appeal from Stafford district court; DANIEL A. BANTA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SLANDER--Words Charging a Felony--Actionable Per Se. In this action for slander the words used by the defendant are held to have charged the plaintiff with a felony and of themselves were actionable.

2. SAME--Admission of Evidence--Rulings. Rulings on the admission of evidence examined and held to be without material error.

3. SAME--No Error in Instructions. Instructions relating to the slander charged and established by the evidence examined and held to be without prejudicial error.

4. SAME--No Release or Bar to Recovery of Damages Shown. After discovering that the crime which defendant had imputed to plaintiff had not been committed, defendant apologized to plaintiff for the wrong and with it gave him a dollar which was retained for a few hours and then returned. Held, that the gift, under the circumstances, did not constitute a release or bar a recovery for slander as there could be no release unless there was a meeting of the minds of the parties and a mutual understanding that the payment and acceptance of the money was in settlement of defendant's liability.

5. SAME--Apology or Retraction No Defense. The apology or retraction of defendant did not operate as a bar to a recovery of damages and was only admissible as tending to show an absence of malice and in mitigation of damages.

6. JUDGMENT--Return of Verdict--Duty of Clerk to Enter Judgment. Upon a return of a verdict it is the duty of the clerk to enter judgment in conformity to the verdict unless an order is made reserving the case for future argument or consideration.

7. SAME--Interest on Judgment. Plaintiff in whose favor a verdict is returned cannot be deprived of interest on his judgment by the failure of the clerk to enter the judgment as the law directs.

8. SAME. A judgment entered allowing interest thereon from the time of the verdict is held not to be erroneous although a motion for a new trial was filed which was not denied and a formal judgment was not entered until twenty-five days after the verdict was returned.

Robert Garvin, and Ray H. Beals, both of St. John, for the appellant.

Paul R Nagle, and Harry T. Gray, both of St. John, for the appellee.

OPINION

JOHNSTON, C. J.:

The plaintiff, Jack Dale Koontz, who was ten years of age, brought an action by his next friend for slander, against Lena Weide, and recovered a judgment for $ 150, from which defendant appeals.

The defamatory words alleged to have been uttered in the presence of a number of persons were:

"You little thief, you stole my pocketbook with $ 20.50. You took it, I am going home and call Mr. Dawson, the city marshal, and have him put you in jail. I will have you arrested."

Two witnesses testified that slanderous words were spoken substantially as alleged while other witnesses gave a modified version of the language used. The jury in answer to a special question found that the words uttered upon which the verdict was based were:

"You stole my pocketbook, I am going to have you arrested."

It appears that the defendant had left her pocketbook on a table in her house and, returning later to get it, discovered that it was not on the table. The plaintiff and other children had been in the house and for some reason defendant jumped to the conclusion that plaintiff had taken it. She sent for the boy and when he arrived she accused him of the theft. It turned out that another member of her family had removed the pocketbook from the table and put it in a receptacle on the buffet. Sometime after finding the pocketbook defendant sent for the boy, apologizing to him for making the accusation, and gave him a dollar which was returned to the defendant by the father of plaintiff.

There is no basis for a serious dispute that the slanderous accusation was made.

There is complaint that the court excluded a negative answer of defendant to the question, "Did you call him a thief?" The objection was properly sustained upon the ground that the question was leading and suggestive. In response to other questions she was permitted to deny in effect that she had called plaintiff a thief. Objections were sustained to other questions upon like grounds but in most cases the rulings were based on the form of the questions, and the evidence was later admitted in answer to questions that were deemed to be unobjectionable. We discover no material error in the rulings on the admission of evidence.

There is complaint as to the instructions in that more attention was given by the court and a greater number of instructions were given relating to the claims of the plaintiff than to the defenses of the defendant. Error can hardly be predicated on an unequal division of instructions or words used by the court in submitting the claims of the respective parties to the jury. The defense pleaded was stated and the jury were instructed that there could be no recovery unless the plaintiff established his claim by a preponderance of the evidence.

Special complaint of instruction thirteen is made in which the jury were advised that--

"Now it is claimed upon the part of the plaintiff that shortly after he had been at the place of residence of the defendant that the defendant in the presence of others openly accused him of stealing her pocketbook containing $ 20.50, and that she threatened to have him arrested and put in jail unless he restored the same...