Stone v. The Hutchinson Daily News

• Decision Date: 07 April 1928
• Docket Number: 27,986,27,987
• Citation: 266 P. 78,125 Kan. 715
• Parties: W. E. STONE, Appellant, v. THE HUTCHINSON DAILY NEWS, Appellee. HARRY CHISLER, Appellant, v. THE HUTCHINSON DAILY NEWS, Appellee
• Court: Kansas Supreme Court

266 P. 78

125 Kan. 715

W. E. STONE, Appellant, v. THE HUTCHINSON DAILY NEWS, Appellee.

HARRY CHISLER, Appellant, v. THE HUTCHINSON DAILY NEWS, Appellee

Nos. 27,986, 27,987

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIBEL AND SLANDER--Privileged Publication--Judicial Proceedings--Search and Seizure Action. A search and seizure action before a justice of the peace, in which a warrant has been issued by the justice and a return has been made thereon, is a judicial proceeding in the sense of considering testimony given and papers filed therein as privileged.

2. SAME--Privileged Publication--Affidavit in Search and Seizure Action. An affidavit showing who took the property sought in a search and seizure action, and showing the connection and arrangement between the owners of the property and those taking it, is proper to be filed in such cause before or after the return of the sheriff on the warrant, and is in the nature of the "proof" referred to in the statute and therefore privileged, except as to Randall, the maker.

3. SAME -- Privileged Publication -- Fair and Reasonably Accurate Report of False Affidavit in Judicial Proceeding. The publication in a newspaper of an article based upon an affidavit filed in a search and seizure action, showing among other things, who took the property and the arrangement with the owners for the taking of it, is qualifiedly privileged, even if the affidavit be false, provided the article be fair, honest and reasonably accurate and not disproportionate, exaggerated or sensational.

4. SAME--Privileged Publication--Question of Law. The question of whether a newspaper article is qualifiedly privileged is one of law to be determined by the court and not by the jury.

5. SAME--Privileged Publication--Articles Qualifiedly Privileged. The published article in this case considered and compared with the affidavit and held to be fully within the rules as qualifiedly privileged.

6. SAME--Privileged Publication--Malice Cannot Be Inferred. Malice cannot be inferred and must not be presumed from a publication that is held by the court to be qualifiedly privileged.

Carr W. Taylor, of Hutchinson, and F. J. Oyler, of Iola, for the appellants.

F. Dumont Smith, Eustace Smith and Arthur T. Symns, all of Hutchinson, for the appellee.

OPINION

HUTCHISON, J.:

This is a consolidation of two actions brought by the two plaintiffs separately against the same defendant, a newspaper publishing company, to recover damages for the publication of an article which the plaintiffs claim was false and libelous, and published by the defendant company maliciously and without probable cause. Issues were joined, trial had to a jury, and verdict and judgment rendered in favor of defendant, from which judgment the plaintiffs appeal.

Three grounds of error are especially urged by the appellants: First, the giving and refusing of instructions; second, the interruption of counsel by the court in the argument and preventing their arguing certain features of the case; and, third, the admission and rejection of evidence.

Counsel for appellants very properly designate the vital issue in the case as being whether the affidavit of H. E. Randall was privileged and the publication of it qualifiedly privileged. The determination of this question will practically settle the questions of error complained of under the three distinct headings above stated.

The preliminary question raised by appellee as to the sufficiency of the abstract and the right to supplement it at a late date has been informally disposed of in the interest of a full, complete and fair presentation of the whole record and all the questions involved, rather than the exclusion of anything deemed important by the enforcement of a severe rule.

The affidavit of Randall, which was the basis of the published article in the newspaper, was made before a justice of the peace in Reno county and filed with such officer in connection with a search and seizure proceeding in his court. The necessary preliminary steps had been taken to procure a warrant to search certain places and seize certain personal property said to have been stolen and to bring the property before the justice of the peace. The sheriff had executed the warrant and had made his return, showing he had found the property, stating where it was found. Randall's name was mentioned in the return, which led to his being interviewed concerning the possession of the property. After such interview he made an affidavit, went with the attorney who assisted him in preparing it to the office of the justice, swore to it there, and left it with the justice, who filed it and placed it among the papers in the search and seizure case. The affidavit contains the names of both plaintiffs, describes the missing property, states an arrangement between himself (Randall) and the plaintiffs, made with a party named as their agent, admits the possession of the property in question, and states it was removed by him under an agreement with the plaintiffs herein.

The reporter on the newspaper found the affidavit with the justice, made notes from it, and investigated the subject to which it related by interviews with the sheriff making the return, and the attorney, who, with permission of the county attorney, had instituted the search and seizure case. Through these interviews the reporter learned of a conversion case being prosecuted by these plaintiffs in the district court of Reno county involving this same property, and from this affidavit and the additional information obtained from the sheriff and attorney the reporter says he wrote the newspaper article that was published, except that he did not write the headlines thereof.

The newspaper article does not follow the language of the affidavit nor pretend to give the details of it. It entirely omits any reference to the first long paragraph of the affidavit, which concerns the relation between Randall and one Haynes, who is in no way connected with either of the cases mentioned and referred to in the newspaper article. The article commences with a brief history of the events leading up to the bringing of the conversion case by the plaintiffs, the sudden disappearance of the property involved therein, the procuring of the search and seizure warrant and the finding of the property, and then mentions things contained in the affidavit about the taking of the property and the arrangement with the plaintiffs that it should be taken. The article concludes with a statement accredited to the attorney to the effect that Randall agreed that the conversion action would be withdrawn "in order to prevent criminal action being brought against them" (undoubtedly referring to the plaintiffs herein). The complication is referred to once in the heading and twice in the body of the article as a conspiracy. The article speaks of the taking of the property with the knowledge of the plaintiffs, whereas the affidavit says it was done through an arrangement with them. There is a subhead in the article, "Knew of removal." The affidavit at one place introduces some of the statements with the remark, "as I am informed and believe."

Was such an affidavit privileged and such an article in a newspaper qualifiedly privileged? It is contended, in the first place, that the Randall affidavit was no part of a judicial proceeding and therefore not entitled to be privileged in any way. It told who took the property, where it was, and by what right or authority it was taken. The finding of the property by the sheriff on a search and seizure warrant is not the end of the case. The justice of the peace shall order the property delivered to the owner after receiving satisfactory proof of the ownership, and he shall take the examination of the persons accused and dispose of the property accordingly. (R. S. 62-1807 to 62-1811.) Whether the justice used and acted upon this...