Weil v. Lynds

Citations

• 105 Kan. 440
• 185 P. 51
• 12 A.L.R. 1236
• 1919 Kan. LEXIS 102

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>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.</p> <p>2. Same — Voluntary Statement of Witness While on the Stamd — 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.</p> <p>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 r