Waln v. Putnam
| Decision Date | 20 April 1972 |
| Docket Number | No. 10838,10838 |
| Citation | 196 N.W.2d 579,86 S.D. 385 |
| Parties | John WALN, Plaintiff and Respondent, v. L. D. PUTNAM, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Herman & Wernke, Gregory, for defendant and appellant.
Johnson & Johnson, Gregory, for plaintiff and respondent.
The allegations of the complaint state a cause of action in slander. Slander is defined in SDCL 20--11--4, which insofar as this case is concerned is in pertinent part as follows:
'Slander defined.--Slander is a false and unprivileged publication, other than libel, which:
(1) Charges any person with crime * * *'.
The complaint alleges that defendant on or about June 5, 1969, at a meeting of the South Dakota Stock Growers Association held in Sioux Falls, South Dakota, spoke and published within the hearing of all attending members the following false and slanderous words about the plaintiff: 'John Waln told me that he stole those (Halligan) cattle and sold them to me.'
The complaint alleges further such statement was maliciously made with the desire to injure plaintiff, and as a result plaintiff suffered damages and asks for actual and exemplary damages.
The factual background, somewhat summarized, is necessary for an understanding of the situation existing at the meeting where the alleged slanderous words were said to have been spoken.
It is provided by SDCL 40--18 that the state brand board is composed of three members appointed by the Governor whose names are submitted by the South Dakota Stock Growers Association. SDCL 40--18--9 and 40--18--10 in part provide that the state brand board may employ persons and corporations to carry out the provisions of chapters 40--20 and 40--21 of the Code, under the supervision and control of the board. The board may appoint as an agency for carrying on of livestock inspection work as nonstock, nonprofit, co-operative corporation of growers of livestock. SDCL 40--18--16 provides that the state brand board shall also have the power and authority to pass rules and regulations relating to the administration of but not inconsistent with the provisions of chapters 40--20 and 40--21 of the Code. The agent of the South Dakota State Brand Board is the South Dakota Stock Growers' Association. A resolution issued by the State brand board of South Dakota having to do with ownership inspection provides for a 'hold' of the proceeds of the sale of certain livestock which the brand inspector finds carrying a reported brand which is not the property of consignor and not accompanied by a proper bill of sale, and then in order to obtain the proceeds evidence of ownership must be established. All doubtful 'holds' shall be presented to the brand committee for final approval.
On June 5, 1969 a brand committee meeting was held in Sioux Falls, South Dakota, attended by at least 40 members of the Stock Growers Association and by others. At this meeting the chairman introduced a couple of 'hold' cases concerning the claim of the defendant and Ethel Halligan and Sons. The disposition of the proceeds of the sale of two head of cattle, both of which bore the South Dakota registered brands of Ethel Halligan and Sons and the defendant, L. D. Putnam, was for decision by the board. The proceeds were being held by the South Dakota State Brand Board. At this meeting the brand committee voted to turn over the proceeds to the Halligans as there was no bill of sale from the Halligans to the defendant Putnam.
The ranches and livestock operations of John Waln, L. D. Putnam and the Halligans are in close proximity in Tood County in the Rosebud country, and in addition, L. D. Putnam, who operates extensively, is also in Bennett County and Nebraska. John Waln is related to Ethel Halligan and a part of the time they pastured their cows and calves together.
On October 30, 1966 the defendant contracted to purchase plaintiff's calves which were delivered November 4, 1966 by the plaintiff to defendant's scales. There were 89 steers and heifers and the plaintiff executed to the defendant a bill of sale and received payment. These were calves which plaintiff had raised, carrying a J/6 brand and with their right ears cropped off. The morning of the delivery and preceding the delivery of these calves, John Waln, assisted by a number of experienced cattlemen, including two of the defendant's hired hands, cut out a number of the Halligan cattle from his herd. After the weighing of the calves at defendant's scales, they were delivered to the corrals at defendant's main ranch in Todd County where they were then or shortly thereafter branded by defendant's hired men.
Plaintiff did not attend the brand committee meeting on June 5, 1969 where the slanderous statements by Mr. Putnam are alleged to have been made, nor were Ethel Halligan and her sons in attendance. The Halligans were represented by Cleveland Bechtold, Deputy Sheriff of Todd and Tripp Counties and also brand inspector for the Stock Growers Association for Todd County. The defendant was present at this meeting. Mr. Bechtold, upon his return from the meeting informed plaintiff of the statements made by Mr. Putnam. The words of the statement claimed to have been made are the basis of the suit. Mr. Putnam denies making any such statement but admits he did make a statement to the Stock Growers Association as to what the plaintiff, John Waln, had told him in reference to these cattle and that the statement which Waln made to the defendant was the one which the defendant repeated to the Stock Growers Association on June 5, 1969 and further, defendant claims that the statement made by him to the Stock Growers Association concerning the plaintiff is a privileged communication. It is defendant's claim that the sum and substance of the statement which he made at the Stock Growers Association or brand committee meeting was in effect that John Waln had told him Further, at the meeting he admitted that he had said that John Waln had admitted to him that he had sold him these cattle. The issue presented by the pleadings is whether the alleged slanderous statement (John Waln told me that he stole those cattle and sold them to me) was made or not, and further if made were they privileged. The trial lasted four days, resulting in a verdict of $12,000 actual and $6,500 exemplary damages for the plaintiff. Judgment was entered thereon January 30, 1970.
The plaintiff who is the respondent herein has made objections to what he terms 'the untimeliness of these appeal proceedings'. It appears from the records that the appeal was prefected on June 2, 1970 and on July 28, 1970 appellant had not then settled the record nor served assignments of error and counsel for plaintiff made a motion to dismiss the appeal. In his brief plaintiff states that no order has been entered on his motion. In this contention plaintiff is in error. There is in this Court an order, dated, signed and filed August 27, 1970, signed by the Presiding Judge, 'that the motion to dismiss be and the same is hereby denied'. Notice of entry of judgment was mailed to the defendant on February 4, 1970 and the defendant on May 20, 1970 made a motion for judgment notwithstanding the verdict or for a new trial, which motion was denied at a hearing on May 25, 1970. This motion for judgment n.o.v. was 105 days after notice of entry of judgment. SDCL 15--6--50(b) provides in part as follows:
'Not later than ten days after notice of entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict'.
It also provides, 'A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative'. It is apparent that defendant's motion for judgment n.o.v. came too late. However, SDCL 15--6--59(b) provides in part that a 'motion for a new trial stating the grounds thereof may be made at any time within which an appeal lies from any judgment rendered in said action.' In the combined motion of the defendant the grounds relied upon by the defendant for a new trial were set forth. SDCL 15--26--2 provides in part as follows:
'An appeal from the judgment must be taken within one hundred twenty days after the judgment shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.'
This appeal is from the judgment and it was taken within 120 days. SDCL 15--26--19 is as follows:
'Orders and determinations of trial court subject to review on appeal from judgment.--On appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record.'
In Fales v. Kaupp, 83 S.D. 487, 161 N.W.2d 855, this Court held,
The defendant had plead privilege. The section governing privileged communications is SDCL 20--11--5, Pocket Supplement, and is as follows:
'Privileged communications--Malice not inferred from publication.--A privileged communication is one made:
(1) In the proper discharge of an official duty;
(2) In any legislative or judicial proceeding, or in any other official proceeding authorized by law;
(3) In a communication, without malice, to a person...
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...N.W.2d at 915. `The defense of absolute privilege or immunity under the law of defamation avoids all liability.' Waln v. Putnam, 86 S.D. 385, 393, 196 N.W.2d 579, 583 (1972). An absolute privilege applies whether the statement is false or not. Id. Flugge, 532 N.W.2d at 421. For purposes of ......
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