Stockman v. Western Union Tel Co.

• Decision Date: 23 October 1900
• Citation: 10 Kan.App. 580,63 P. 658
• Parties: STOCKMAN v. WESTERN UNION TEL. CO.
• Court: Kansas Court of Appeals

63 P. 658

10 Kan.App. 580

STOCKMAN v. WESTERN UNION TEL. CO.

Court of Appeals of Kansas, Northern Department, Western Division

October 23, 1900

Syllabus

The language of the telegram in this case was not libelous per se.

Error from district court, Smith county; R. M. Pickler, Judge.

Action by Maggie Stockman against the Western Union Telegraph Company. Judgment for defendant, and plaintiff brings error. Affirmed.

J. T Reed and Mahin & Mahin, for plaintiff in error.

Hayden & Hayden, for defendant in error.

OPINION

WELLS J.

This action was brought in the district court of Smith county by Maggie Stockman, the plaintiff in error, against the Western Union Telegraph Company, a corporation, for damages alleged to have been sustained by the plaintiff by reason of the defendant having received at its office in Kensington, Kan., transmitted over its wires, and delivered to the plaintiff at Smith Center, Kan., a certain alleged libelous telegram. Said telegram, substituting a blank for the objectionable word, was as follows: "To Mrs. Maggie Stockman, Care Martha Noble, Smith Center, Kans.: Dont study ___ too hard. No witnesses will appear. Fritz Van Holstein." By substituting for the initial letter of the omitted word another letter having the same sound, the first syllable thereof would be a vulgar term sometimes used to designate the female sexual organs, and the word was completed by the terminal "ology." It appeared from the evidence offered by the plaintiff that the message was furnished the defendant for transmission and delivery to the plaintiff by her husband, with whom she then had a divorce suit pending; that the operator raised some question as to the meaning of the objectionable word, and was told by the sender, who was a stranger to him, that it meant "cunningness," and that it was "all right," and to "just send it." At the close of the plaintiff’s evidence the court sustained a demurrer to the evidence, and rendered judgment for the defendant.

The only vital question in this case is, were the words contained in the telegram libelous per se? If they were so, then the judgment was wrong; if not, the judgment was correct. The plaintiff in her petition claims that the telegram does, and was intended by the defendant to, charge that the said plaintiff was engaged in acts of sexual intercourse with others than her husband. Is this true? Assume that the misspelling of the first syllable...