Latimer v. Oyler
| Decision Date | 12 March 1921 |
| Docket Number | 22,505 |
| Parties | PERMELIA LATIMER, Appellant, v. F. J. OYLER, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1921.
Appeal from Allen district court; OSCAR FOUST, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
SLANDER--Words Used in Argument to Jury--When Language is Privileged. An attorney defending a client on the charge of statutory rape in his argument to the jury asserted that the girl's mother who was present and assisting in the prosecution knew who killed another daughter of hers and was conniving with the complaining witness to shield the murderer whom he charged with being guilty of the offense laid in the prosecution he was defending. It was shown that he stated that he made these assertions from his opinion of the testimony in the criminal action. Held, in an action for slander based thereon that such language was privileged, and the demurrer to the plaintiff's evidence was rightfully sustained.
R. E. Cullison, of Iola, for the appellant.
Travis Morse, and W. H. Anderson, both of Iola, for the appellee.
The plaintiff appeals from an adverse judgment, the action being one for slander. The petition alleged that in the courthouse in the presence and hearing of and while facing towards the plaintiff and the audience, the defendant spoke falsely of her, saying in substance that she knew who killed her daughter; that she knew Roy Ard killed her and that she kept the secret for him; that she was harboring and shielding the man she knew to have murdered her own daughter, and that if she would only tell what she knew one of the greatest murder mysteries that ever was in the state would be cleared up, and "Roy Ard would have been in the penitentiary or his neck would have been stretched."
The defendant answered denying the language charged, averring that if it had been uttered by him it would have been true as he verily believed. It was further alleged that he was a regularly practicing attorney; that the plaintiff was the mother of Viola Ard, deceased, who was the wife of Roy Ard, and the mother of Katie Latimer; that some months before this action was begun Viola, Roy and Katie were riding in an automobile when Viola was shot to death, and later Roy was arrested charged with her murder; that prior to the date alleged in plaintiff's petition Katie made complaint and caused Eldon Hawley to be arrested charging him with the crime of statutory rape upon her and claiming that he was the father of her illegitimate child; that during all of that time Katie made her home with her mother; that Hawley's defense in the criminal action was not guilty, and that Roy Ard was the father of the child and the charge against Hawley was the result of a conspiracy between Katie Latimer and her mother; that the plaintiff herein was present during all of the Hawley trial, took a very active part in the proceedings, sat with the prosecuting witness, Katie, and aided her, and often during the trial became very demonstrative; that at the time and place set forth in the petition the defendant was engaged as one of Hawley's counsel in arguing the law and evidence to the jury, and all and any language used by him was so used in making one of the arguments to the jury and had reference to plaintiff's testimony and demeanor and that of other witnesses in the action, and their credibility; that all comments and language used were, in this defendant's best judgment, necessary and proper for the defense of Hawley; that Katie Latimer had told Hawley before the trial that she knew Roy had killed his wife, Viola, and Hawley had repeated this statement to the defendant before he made this argument; and that the result of the trial was the acquittal of Hawley, and the language used was addressed to the jury and intended for their consideration and was privileged and justified.
At the close of plaintiff's evidence the trial court sustained a demurrer thereto, and from this ruling the appeal is taken. The official stenographer died and the court prepared, or settled, a statement of the proceedings and the evidence. The evidence is thus summarized:
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Sampson v. Rumsey
...trial of a case is not actionable if it has reference to the cause under consideration, although false and malicious. (Latimer v. Oyler, 108 Kan. 476, 480, 196 P. 610.) In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court concluded that the prosecutor ......
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Jackson v. Sloan, WD
...all communications having reference to the case, even though false and malicious. Id. 563 P.2d at 509; see also Latimer v. Oyler, 108 Kan. 476, 196 P. 610, 612 (1921). We conclude from Sampson that the absolute immunity, if applicable, is a basis for dismissing a petition for failure to sta......
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Legal Malpractice in Kansas: Principles and Examples
...1, 18, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). 45. Sampson v. Rumsey, 1 Kan. App. 2d 191, 194, 563 P.2d 506 (1977); Latimer v. Oyler, 108 Kan. 476, 480, 196 P.2d 610 (1921). 46. Garber-Pierre Food Products Inc. v. Crooks, 78 Ill. App. 3d 356, 397 N.E.2d 211 (1979)(accusations of "blackmail......
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Legal Malpractice in Kansas: Principles and Examples
...1, 18, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). 45. Sampson v. Rumsey, 1 Kan. App. 2d 191, 194, 563 P.2d 506 (1977); Latimer v. Oyler, 108 Kan. 476, 480, 196 P.2d 610 (1921). 46. Garber-Pierre Food Products Inc. v. Crooks, 78 Ill. App. 3d 356, 397 N.E.2d 211 (1979)(accusations of "blackmail......