Stidham v. The State Bank of Esbon

• Decision Date: 09 June 1928
• Docket Number: 28,147
• Citation: Stidham v. The State Bank of Esbon, 268 P. 106, 126 Kan. 336 (Kan. 1928)
• Parties: FLORA R. STIDHAM, Appellee, v. THE STATE BANK OF ESBON et al., Appellants
• Court: Kansas Supreme Court

268 P. 106

126 Kan. 336

FLORA R. STIDHAM, Appellee, v. THE STATE BANK OF ESBON et al., Appellants

No. 28,147

Supreme Court of Kansas

June 9, 1928

Decided January, 1928

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIBEL AND SLANDER -- Pleading -- Necessity of Alleging When Statements Made. In an action to recover damages for injuries to the financial standing of a person caused by wrongful false and malicious statements made by others to injure the financial standing of the plaintiff, it is error to deny a motion of the defendants asking that the petition be made more definite and certain by stating the time when the statements were made where the petition contains nothing to indicate when the statements were made.

2. SAME -- Slander Affecting Bank and Stockholder -- Parties. A stockholder in a bank can maintain an action for the damages sustained by him caused by such statements as are indicated in the first paragraph of this syllabus where such statements have been made to injure the financial standing of both the plaintiff and the bank.

3. SAME--Pleading--Necessity of Setting Out Names of Parties in Whose Presence Statements Made. In an action for damages sustained by reason of defamatory statements made by the defendant concerning the integrity, ability and solvency of the plaintiff, the names of the persons to whom or in whose presence the defamatory statements were made were not alleged; a motion to require the petition to be made more definite and certain by setting out the names of such persons was sustained; an amended petition was filed; the names of the persons were not set out; a demurrer to the petition was filed and overruled. Held, that either the demurrer should have been sustained or the action should have been dismissed on account of the failure to allege the names of such persons.

J. T. Reed, F. W. Mahin, both of Smith Center, A. M. Harvey and Randall C. Harvey, both of Topeka, for the appellants.

R. W. Turner and D. F. Stanley, both of Mankato, for the appellee.

Marshall J. Harvey, J., not sitting.

OPINION

MARSHALL, J.

The plaintiff, a stockholder in the Farmers State Bank of Esbon, sued to recover damages sustained by her caused by the defendant's circulating false and malicious statements impugning the financial standing of the Farmers State Bank of Esbon and of the plaintiff. All the defendants, except the Farmers State Bank of Esbon, appeal from an order denying parts of their motion to make the original petition more definite and certain, from an order denying their motion to strike out a part of that petition, and from an order overruling their demurrer to the amended petition of the plaintiff.

The petition alleged that all of the defendants, except the Farmers State Bank of Esbon, conspired with each other--

"For the purpose of weakening and destroying the business, influence, financial credit and standing of plaintiff and of said the Farmers State Bank of Esbon, and to break them up and run them out of business, and, for the purpose of accomplishing said design made certain false and malicious statements and representations and circulated rumors impugning the financial standing of said the Farmers State Bank of Esbon and the solvency and reputation thereof and derogatory to the integrity, ability and solvency of the plaintiff and of one Guy O. Seaton, who at said time was or shortly thereafter became the cashier of said the Farmers State Bank of Esbon. . . .

"That the statements and representations as aforesaid were made to many people in and about Esbon and in the trade and banking territory of said the Farmers State Bank and to numerous of its customers and depositors, and that each defendant with the purpose to accomplish injury to plaintiff and to said the Farmers State Bank of Esbon participated by performing jointly and individually the acts and statements above referred to . . ."

1. The appellants filed a motion asking that the petition be made more definite and certain--

"By stating the time of the making or circulating of said alleged statements, representations and rumors, and if unable to state the exact time, by stating the same as nearly as possible, by setting out dates within the limits of which said alleged rumors, statements and representations were made or circulated."

That part of the motion was denied.

In Haag v. Cooley, 33 Kan. 387, 6 P. 585, this court declared that--

"In an action for slander, the petition did not state when, or where, or to whom the alleged slanderous words were spoken, and the defendant moved the court to require the plaintiff to make his petition more specific and definite in these particulars, but the court overruled the motion. Held, error."

The time when the statements and representations were made should have been alleged so as to show whether or not the action, when commenced, was barred by the statute of limitations. It was error to deny that part of the motion. An amended petition was afterward filed to comply with the order of the court in other particulars, but it did not show when the statements complained of were made. It alleged that the plaintiff was unable to state the exact time when the statements were made. That did not remedy the defect in the petition.

2. Section 21-2452 of the Revised Statutes reads:

"Whenever...