Marney v. Joseph

• Decision Date: 09 January 1915
• Docket Number: 19,167
• Citation: 94 Kan. 18,145 P. 822
• Parties: MATTIE MARNEY, Appellant, v. J. D. JOSEPH, Appellee
• Court: Kansas Supreme Court

145 P. 822

94 Kan. 18

MATTIE MARNEY, Appellant, v. J. D. JOSEPH, Appellee

No. 19,167

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Demurrer to Answer--Carried Back to Petition. A demurrer to an answer may be carried back to a petition and the sufficiency of the petition tested upon that challenge although a previous demurrer to the petition had been considered and overruled.

2. SAME. Upon a demurrer to an answer which is carried back to a petition the plaintiff will not be deemed to have admitted allegations in the answer which are inconsistent with and contradictory of those included in his petition.

3. LIBEL--Letters by Guardian of Insane Ward--Not Absolutely Privileged. False statements made by a guardian of an insane ward to relatives of his ward, imputing dishonesty and crime to another who is making a claim against the ward and his estate, are not within the rule of absolute privilege.

4. SAME--When Not Conditionally Privileged. Neither will the false statements above referred to be conditionally privileged if they were not written or spoken in good faith in the performance of the guardian's duty and without a malicious purpose, nor if the statements include libelous matter not pertinent to the subject within the privilege of the guardian to write and publish.

C. L. Aikman, of El Dorado, for the appellant.

W. H. Von der Heiden, A. E. Morgan, both of Newton, George J. Benson, and T. A. Kramer, both of El Dorado, for the appellee.

OPINION

JOHNSTON, C. J.:

Mattie Marney brought this action against J. D. Joseph to recover damages resulting from an alleged libel. In her petition she set forth a number of written statements made and published by the defendant imputing misconduct, fraud and crime to her. A demurrer to the petition was overruled, and the defendant then answered, admitting the writing and publication of the alleged libels and averring that his statements were true. He also alleged that the statements were written in good faith and were such as are privileged under the law. Plaintiff demurred to the answer, claiming that it failed to state a defense, and upon this demurrer the court determined that it should be carried back to the petition, and upon a reconsideration of the averments of the petition decided that a cause of action against the defendant was not alleged and accordingly gave judgment for defendant.

The fact that the court had previously overruled the demurrer to plaintiff's petition did not preclude a re-examination of its averments upon the demurrer to defendant's answer. It was competent for the court to carry the demurrer back to the petition, thus searching the entire record, and to decide whether or not the averments of the petition, supplemented as they may have been by admissions recited in the answer, stated a cause of action. There is a contention that plaintiff by her demurrer to the answer admitted the averments contained in it to be true, and that these admissions should be held to qualify the averments of the petition, and that so regarded the petition failed to state a cause of action. Ordinarily a demurrer admits the facts stated in the pleading to which it is addressed, and while it is true that the sufficiency of the petition may be tested on a demurrer to an answer and that in testing it any defects in the petition may be regarded as cured by admissions made in the answer (Sill v. Sill, 31 Kan. 248, 1 P. 556), yet on such consideration the averments of the petition can not be regarded to be overturned and destroyed by inconsistent and contradictory averments in the answer. The demurrer does not admit allegations of the answer which are contradictory to the averments in the petition. (6 Standard Proc. 952.) In passing upon the sufficiency of the petition the court could not regard the averments in the answer which were wholly antagonistic to those of the petition, to the effect that the charges of misconduct and crime made against plaintiff were true, nor that any other of the averments in the answer which were inconsistent with or contradictory to the allegations of the petition were admitted.

We still have the question whether a cause of action is stated in the petition. The contention of the defendant is that the defamatory communications, about the writing and publication of which there is no dispute, are privileged. As the statements imputed to the plaintiff were those which rendered her liable to punishment and were calculated to make her odious and infamous, they were deemed to be actionable...