Morehead v. Rush

• Decision Date: 21 January 1961
• Docket Number: No. 42358,42358
• Citation: 187 Kan. 624,358 P.2d 752
• Parties: Tom MOREHEAD, Appellee, v. Dalice RUSH, Appellant.
• Court: Kansas Supreme Court

Page 752

358 P.2d 752

187 Kan. 624

Tom MOREHEAD, Appellee, v. Dalice RUSH, Appellant.

No. 42358.

Supreme Court of Kansas.

Jan. 21, 1961.

Syllabus by the Court

In an action for slander the record is examined, in the light of the facts, conditons and circumstances set forth in an amended petition, and it is held the trial court did not err (1) in overruling a demurrer to that pleading nor (2) in denying a motion to strike certain of its allegations.

George W. Donaldson, Chanute, for appellant.

Charles F. Forsyth, Erie, for appellee.

PARKER, Chief Justice.

This is an action for damages for slander in which, under a proper notice of appeal and specifications of error, the defendant is entitled to a review of the trial court's action in overruling his demurrer to plaintiff's amended petition and, by reason of G.S.1959 Supp. 60-3314a, a review of a prior order overruling his motion to strike certain allegations from the second cause of action of the original petition.

Plaintiff commenced the action by filing the petition in which he purported to set forth two causes of action for slander. Subsequently defendant attacked that pleading by filing a motion wherein he moved to strike and to make more definite some of the allegations of the first cause of action and to strike certain allegations, to be presently mentioned, from the second cause of action. The trial court overruled all portions of the motion to strike but sustained the portion thereof asking that plaintiff be required to make the allegations of his first cause of action more definite. Thereafter plaintiff's motions, to dismiss the first cause of action and for leave to file an amended petition, were sustained. The amended petition was filed in due time and, for purposes here involved, it may be stated it contained one cause of action in the form of a verbatim statement of the second cause of action, as previously set forth in the original petition. Defendant immediately attacked the amended pleading by a general demurrer. When it was overruled he perfected the instant appeal in which he makes no complaint of rulings made by the trial court with respect to the first cause of action of the petition.

In order to insure a propern understanding of the appellate questions involved it will be necessary to quote some of the identical allegations of the amended petition, as well as those of the second cause of action of the original petition. They read:

'That heretofore, to-wit, on or about the 31st day of October, 1959, at the Spot Tavern in Chanute, Neosho County, Kansas, in a certain discourse and conversation which said defendant had with one Ralph Burghart in the hearing and presence of other persons not known to the plaintiff, said defendant, Dalice Rush, took from his pocket an envelope with the notation, 'Taken from Morehead's Files', that he took from the envelope three photographic prints * * *; that defendant, Dalice Rush, identified the subject of the photographs and maliciously spoke and published of and concerning this plaintiff in words as follows, to-wit: * * *' (Emphasis supplied.)

The two pleadings, from which he have just quoted, contain other allegations with which we do not care to burden our reports. It suffices to say they relate to the slanderous statements claimed to have been made by appellant and the damages sustained by appellee by reason of their publication, and that their legal sufficiency is not under attack or involved in this appeal.

In approaching all questions raised by appellant in this appeal it should be pointed out that under the heretofore quoted allegations of the amended petition the plaintiff, with respect to the slanderous statements relied on as the basis of his cause of action, (1) fixed the date of the making of those statements as on or about October 31, 1959; (2) specifically identified the place where such statements were made as the Spot Tavern in the City of Chanute; (3) definitely named the person to whom such statements were directly uttered; and (4) when all allegations touching such subjects are considered together, made it definite and certain the alleged slanderous statements relied on were all made on a single occasion.

In spite of what has just been stated appellant insists that his general demurrer, based solely on the ground the petition failed to state facts sufficient to constitute a cause of action, should have been sustained and that the trial court erred in overruling it.

Without laboring the question thus raised it may be stated that it was decided in this jurisdiction long ago, contrary to appellant's contentions, in one of the very cases on which he relies to sustain his position on this point.

In Haag v. Cooley, 33 Kan. 387, 6 P. 585, in dealing with the specific question now under consideration, this court said:

'* * * Of course, indefiniteness on the part of the petition did not prevent its stating a cause of action or render it insufficient as against a demurrer. A petition may state a good cause of action for slander without stating when or where or to whom the alleged slanderous words were spoken; but by the stating these things it makes it much more difficult for the defendant to prepare for his defense * * *' 33 Kan. at page 388, 6 P. at page 586.

The established rule of this jurisdiction is that where--as here--a general demurrer challenges the sufficiency of the entire petition to state a cause of action the trial court does not err in overruling such demurrer if a pleading so challenged states a cause of action on any theory. Fernco, Inc., v. Kennedy, 181 Kan. 25, 31, 309 P.2d 400. For other decisions, where this rule has been considered, discussed and applied, see Clark v. Hildreth, 179 Kan. 243, 247, 293 P.2d 989; Edwards v. Solar Oil Corp., 177 Kan. 219, 222, 277 P.2d 614; Myers v. Fleetwood Farms, Inc., 176 Kan. 515, 516, 271 P.2d 263; Butler v. Rude, 162 Kan. 588, 178 P.2d 261; Updegraff v. Lucas, 76 Kan. 456, 93 P. 630, 94 P. 121.

So here, adherence to what is stated and held in Haag v. Cooley, supra, and the universal rule announced in decisions last cited, requires a conclusion the trial court did not commit reversible error in overruling the demurrer to the instant petition.

Thus we come to the second and final issue raised in this appeal. It is that the trial court erred in overruling appellant's motion to strike the heretofore quoted allegations of the amended petition, which we have underlined for purposes of emphasis and avoiding repetition.

In this connection appellant argues...