Weil v. Lynds

• Decision Date: 08 November 1919
• Docket Number: 22,107
• Parties: SOL WEIL, Appellant, v. JOHN H. LYNDS, Appellee
• Court: Kansas Supreme Court

185 P. 51

105 Kan. 440

SOL WEIL, Appellant, v. JOHN H. LYNDS, Appellee

No. 22,107

Supreme Court of Kansas

November 8, 1919

Decided July, 1919.

Appeal from Doniphan district court; ARTHUR C. BELL, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SLANDER--No Fatal Variance Between Allegations and Proof. In an action for slander, where the defamatory words as pleaded were "He embezzled one thousand dollars or more from me in the La Cygne transaction alone," a fatal variance does not result from evidence showing that the words "from me" were not used, it appearing that the charge of embezzlement had reference to the relations of the person accused with a corporation of which the speaker was manager, and the title of which included his name.

2. SAME--Voluntary Statement of Witness While on the Stand--When Privileged. Where a witness while on the stand makes a voluntary statement--one not given in reply to a question asked him--he is entitled to absolute privilege with respect to it and, regardless of his motives, cannot be held to answer for it in an action for slander, if in fact it is pertinent to the issue being tried; otherwise he enjoys but a qualified privilege, depending upon whether or not he acted in good faith and believed the statement to be pertinent, as well as true.

3. SAME. An action for slander was based upon the defendant having said while on the witness stand, but not in reply to a question, that the plaintiff had embezzled a thousand dollars in a certain transaction. The evidence showed the action in which the defendant had been a witness to have been one against the plaintiff in the present case for an accounting the petition therein alleging that he had refused to account in respect to a business he had carried on for the plaintiff in that case; that he had used bad faith in its operation; and that in the transaction referred to in the statement of the witness he had taken live stock of his employer to a farm of his own and failed to account for it. Held, that, in view of these facts, and also of evidence indicating more fully the character of the controversy regarding the transaction at the farm, the statement made by the witness relating to embezzlement was pertinent to the issue on trial, and therefore absolutely privileged.

C. E. Butts, of Troy, and A. Bowers, of St. Joseph, Mo., for the appellant.

C. W. Reeder, of Troy, Bennett R. Wheeler, S. M. Brewster, and John L. Hunt, all of Topeka, for the appellee.

OPINION

MASON, J.:

Sol Weil brought an action against John H. Lynds for slander. A demurrer to the plaintiff's evidence was sustained, and he appeals.

1. The words on which the action was based, as set out in the petition, were: "He embezzled one thousand dollars or more from me in the La Cygne transaction alone." The evidence was that the defendant had said of the plaintiff that he "had embezzled a thousand dollars, or more than a thousand dollars, in the La Cygne transaction alone." The defendant claims that there is a fatal variance between the allegation that the defendant had been accused of embezzling from the plaintiff and the evidence that the accusation did not specify against whom the alleged offense had been committed. The pleadings and testimony made it clear that the charge of embezzlement had reference to the relations between the plaintiff and a corporation known as the John H. Lynds Mill and Elevator Company, of which the defendant was the general manager, and that the plaintiff's dealings with the corporation had been conducted through the defendant. If the words proved had included the expression "from me" they could readily have been shown to refer to the corporation. A disposition on the part of the courts has sometimes been manifested to hold the evidence very closely to the language pleaded--at least to its substance--but the general rule is that not all the words charged need be proved, so that those that are shown are actionable in themselves. (25 Cyc. 484; 17 R. C. L. 422.) We regard the claim of variance as untenable.

2. The ruling of the trial court was obviously based upon the theory that the statement of the defendant upon which the action is based was absolutely privileged. It was made while he was upon the stand as a witness, but not in reply to a question that had been asked him at the time. A discussion had been going on between counsel and the court as to the competency of certain testimony, when the witness, addressing the judge, before whom the case was being tried without a jury, used the words referred to.

There is considerable apparent, and some real, conflict as to the extent to which a witness is immune from being called to account in an action for slander for words spoken while upon the stand. His immunity is of course more extensive where what he says is in answer to a question asked of him than where he volunteers it. It is not his province to consider whether the question itself is proper, and he is not expected to be able to distinguish nicely as to the responsiveness of his reply. The public interest is concerned that the whole truth shall be brought out, and that nothing the witness knows that is really pertinent to the issue on trial shall be withheld through fear on his part that he may be subjected to a civil action for telling it. The same considerations although doubtless to a less extent, affect the rule in the case of volunteer testimony. A witness is sworn to tell the whole truth, as well as nothing but the truth. If a fact is known to him which bears upon the matter under investigation, it is his duty to divulge it even although he might return a true categorical answer to every question asked him without doing so. An inclination to give only so much information as is absolutely essential to avoid perjury is not to be encouraged. The public welfare is subserved by such a condition of the law that a witness who knows of a fact which seems to him material to a decision of the controversy should voluntarily make it a part of his...