Bebout v. Pense

McCOY, J. Plaintiff instituted this action against the defendants jointly, charging that defendants maliciously slandered plaintiff by uttering and publishing oral words falsely charging plaintiff with having stolen defendant’s cattle. Defendant demurred to the complaint on the ground, among others, that the complaint fails to state facts sufficient to constitute a cause of action against defendants. The demurrer was overruled, and defendants excepted and appeal, assigning as error the said ruling of ¡the court. It is the contention of defendants that plaintiff cannot maintain this action against them jointly for uttering and publishing spoken slanderous words; that each of them is responsible only for his or her own spoken words, and not for the words of the other. We are of the opinion that appellants are. right in this contention. [1] It seems to be the well-established rule that such an action cannot be maintained against two or more defendants [622] jointly, unless ,the result of a conspiracy. There are-no allegations in the complaint indicating a conspiracy. [2] Having alleged a cause of action against two defendants under circumstances, where an action cannot be so maintained, and wherein a judgment is not permitted to be entered against two or more jointly, the complaint fails to state facts sufficient to constitute .a cause of action, and therefore the demurrer should have been sustained. Newell on Slander & Libel, p. 382; Odgers on Libel & Slander, p. 601; Townsend on Slander & Libel, p. 99; 25 Cyc. 434; Duquesne Distributing Co. v. Greenbaum, 135 Ky. 182, 121 S. W. 1026, 24 L. R. A. (N. S.) 955, 21 Ann. Cas. 481; Webb v. Cecil, 9 B. Mon. (Ky.) 198, 48 Am. Dec. 423; Blake v. Smith, 19 R. I. 476, 34 Atl. 995. [3] Respondent contends that defendants, having answered in the action, waived the right to interpose said demurrer. This contention would be well taken but for the fact that it appears from the record that defendants withdrew said answer, by leave of the court, before interposing said demurrer. There is no intention to, by this decision, modify or in any manner change the rule heretofore announced by this court in Evans v. Fall River Co., 9 S. D. 130, 68 N. W. 195, Rochford v. School District, 17 S. D. 542, 97 N. W. 747, apd Coffee v. Dorwart, 139 N. W. 777; the decision in this case being based upon entirely different grounds. The order overruling said demurrer is reversed, and the cause remanded for further procedure in accordance with the views herein expressed.