Schulze v. Coykendall

• Decision Date: 24 January 1976
• Docket Number: No. 47825,47825
• Citation: 545 P.2d 392,218 Kan. 653
• Parties: E. Gene SCHULZE, Appellant, v. Richard COYKENDALL, Appellee.
• Court: Kansas Supreme Court

Page 392

545 P.2d 392

218 Kan. 653

E. Gene SCHULZE, Appellant, v. Richard COYKENDALL, Appellee.

No. 47825.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. A slander involves only one act, the speaking of words and the hearing and understanding of them by third persons. Each such instance gives rise to a distinct claim.

2. A petition for libel and slander must set forth the alleged defamatory words spoken or published, the names of those persons to whom they were spoken or published and the time and place of their publication.

3. When a petition for slander or libel fails to set froth the necessary information as stated in Syl. 2 of this opinion and the plaintiff fails to comply with an order of the court for a more definite statement the action may be dismissed or a summary judgment may be entered in favor of defendant on those separate counts for which the necessary information is not given.

4. The authority of a trial court to impose sanctions should be exercised no more drastically than is actually required to protect the rights of the other parties.

5. Ordinarily a publication is qualifiedly or conditionally privileged if it is made under circumstances and in a manner which repel, preclude or rebut the inference of malice arising prima facie from a statement prejudicial to the character of the plaintiff.

6. There is a public interest involved in school matters and patrons have a common interest and duty in the premises. Acting in good faith they may petition a school board relating to the qualifications and tenure of a public school teacher and the preparation and filing of the complaint enjoys a qualified privilege.

7. The determination of whether a conditional privilege exists is a question of law to be decided by the court when the facts upon which such a determination must stand are undisputed.

8. In this jurisdiction there is no liability on a conditionally privileged communication absent the existence of actual malice and in such a case the burden of proof is on the plaintiff to establish malice.

9. Proof of actual malice in defamation actions when a conditional privilege is found to exist requires a plaintiff to prove that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not.

10. In an action charging separate publications of libel and slander concerning the professional actions of a public school teacher the record on appeal is examined and it is held: (1) the trial court did not err in entering summary judgment in favor of the defendant on the claim or claims of slander, and (2) the trial court did err in entering summary judgment in favor of defendant on the claim of libel.

Charles F. Forsyth, Erie, argued the cause, and Clark M. Fleming, Erie, was with him on the brief for appellant.

J. D. Conderman, Iola, argued the cause, and Robert V. Talkington, Iola, was with him on the brief for appellee.

FROMME, Justice:

This is an appeal from an order granting a summary judgment for defendant in an action for libel and for slander.

The plaintiff, E. Gene Schulze, was principal of the elementary school in Humboldt, Kansas. The defendant, Richard Coykendall, was a patron of the school district. The plaintiff filed his petition setting forth 13 slanderous statements alleged to have been made by the 'defendant in the month of June, 1973, in conversations with various members of the Humboldt community.' The plaintiff further alleged that 'on July 2, 1973, the defendant published the same allegations in a complaint in writing filed with the Board of Education of Unified School District No. 258.' Both of these allegations in the petition were followed by further allegations that they were wholly false, prompted by malice, and that plaintiff was injured in his reputation and business.

The thirteen defamatory statements set forth in the petition need not be copied in this opinion. Suffice it to say they imputed to the plaintiff neglect of his duties as principal of the school and other actions which would indicate lack of capacity and fitness to properly perform his professional duties as a public school principal.

The defendant filed answer denying that the oral statements were spoken to members of the Humboldt community. He admitted filing the written complaint with the board and requesting a hearing. He alleged the statements were true, made without malice in the public interest, and were privileged. He further denied that plaintiff was damaged.

The defendant then filed a motion for summary judgment alleging the petition shows on its face that said statements were absolutely privileged and that a hearing was held by the Board of Education on the complaint and the statements contained therein were found to be true. He further alleged that the petition did not state a claim upon which relief could be granted. This latter ground appears to be based upon a claim that the petition did not set forth essential details of the slander, such as where, when and to whom a particular statement was made. This motion was overruled.

The defendant, in an effort to obtain the details of plaintiff's claims, deposed the plaintiff. The plaintiff was asked the name or names of those persons to whom each particular slanderous statement was made. He stated he did not know.

Thereafter defendant filed a renewed motion for summary judgment and asserted the complaint he filed was absolutely privileged. The complaint had been filed with the Board of Education. A public hearing was held. The board found the statements were true. As to the 13 slanderous statements the defendant claimed the petition failed to identify the names of those to whom a particular statement was alleged to have been made and that plaintiff in his deposition was unable or refused to identify those persons.

On this renewed motion the court determined:

'1. Defendant is entitled to know the names of the person or persons to whom the alleged statements were spoken and the nature of their testimony relative to the allegations of the petition, and Plaintiff should be allowed fifteen (15) days to provide such information to Defendant's counsel.

'2. The question of absolute privilege should be resolved as a matter of law before the matter of trial is further considered and Plaintiff be allowed fifteen (15) days to provide further memorandum on this question.'

Six days later in response to the court's order the plaintiff filed a rather lengthy memorandum. The details of filing the written complaint with the Board of Education were set forth, giving the date, the names of those on the board, and referring to the written complaint. However, as to the slanderous statements alleged in the petition to have been published in June, 1973, 12 witnesses were named but plaintiff stated he could not specify the exact dates, times and places any particular statement was made.

The trial court granted summary judgment. The order recites the procedural matters which had transpired and concludes:

'1. The failure of plaintiff to so specify what alleged defamatory statements were made by defendant to specified persons and at certain places and times is fatal to a cause of action based on such general allegations as made by plaintiff. Haag v. Cooley, 33 Kan. 387 (6 P. 585), Stidham v. State Bank, 126 Kan. 336 (268 P. 106); Morehead v. Rush, 187 Kan. 624 (358 P.2d 752).

'2. Defendant's motion for summary judgment is sustained and the action dismissed at costs of plaintiff. The clerk is to enter judgment accordingly forthwith.'

Although the trial court treated the alleged slander in June, 1973, and the alleged libel on July 2, 1973, on the same basis in the order, we do not believe they can be disposed of on the same basis. As to the libel charge the contents of the complaint the date of filing, the names of the members of the Board of Education, and the place of filing were adequately disclosed. We will consider the libel charge later.

We turn to the ruling on the slander charge. Appellant contends the court erred because in the state of Kansas we now have notice pleading. The cases relied on by the court were prior to that change in pleading.

Prior to notice pleading in this state a petition for defamation had to state when, where and to whom the alleged defamatory words were spoken or published. It was held a petition must state the alleged defamatory words spoken or published, the names of those persons to whom they were published and the time and place of publication. (Haag v. Cooley, 33 Kan. 387, 6 P. 585; Stidham v. State Bank, 126 Kan. 336, 268 P. 106; Morehead v. Rush, 187 Kan. 624, 358 P.2d 752.) In Haag it is held that a petition which fails to disclose these facts in an action for defamation is subject to a motion to make definite and certain. In Stidham it is held that on failure to do so the action is subject to dismissal. The Stidham case relied on Anderson v. Denison Clay Co., 104 Kan. 766, 180 P. 797, in which it is held that when a party fails to comply with an order to make definite and certain the action may be dismissed. In Haag the reason given for requiring a more definite statement in an action for defamation is that without this information it is much more difficult, if not impossible, for the defendant to prepare for his defense.

With the advent of the rules of civil procedure on January 1, 1964, notice pleading was authorized. K.S.A.1975 Supp. 60-212(e) now provides:

'If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within ten (10) days after notice of the order or within such time as the court...