McCollum v. Langdon

Opinion of the Court by William Rogers Clay, Commissioner Reversing. Plaintiff, Alice McCollum, suing by her mother as next friend, brought this action against defendant, Alfred Langdon, to recover damages for slander. Defendant moved the court to require plaintiff to specify the names of the persons in whose presence and hearing the alleged slanderous publications were made. This motion was sustained. Plaintiff declined to comply with the ruling of the court and elected to stand by her petition. Thereupon her petition was dismissed, and she appeals. Several alleged slanderous publications are relied on. In many instances the petition charges that the defendant, “within the presence and hearing of divers persons,” falsely and maliciously spoke and published of and concerning plaintiff certain slanderous words. Then follow several alleged slanderous publications. Following these publications the petition relies on certain other slanderous publications made in the presence of Doctor ■ Cook. ' While it is the rule that a petition which charges that the words were uttered and published in the presence of some third person or persons, without naming them, is good on demurrer, that is not the question presented for decision.' The question is, did the trial court err in directing plaintiff to furnish a bill of particulars specifying the names of such persons? It is the general rule, regardless of the character of the action, that the court [246] had a discretionary power to order such a bill, on motion of the defendant, whenever the facts constituting the plaintiff’s cause of action are. not stated with sufficient particularity to enable the opposing party to guard against surprise .in the preparation of his defense. Brown v. Calvert, 4 Dana (Ky.), 219. Following this rule, it is generally held that the defendant, in actions for slander or libel, is entitled to know definitely the time and place of the alleged slander or libel and the name of a party to whom publication was made, and if the petition fails to show these particulars a bill of particulars will be ordered. 25 Cyc., 467; Newell’s Slander and Libel, 3rd Edition, Section 909; Wood v. Jones, 1 F. & F., 301; Slator v. Slator, 8 L. Times (N. S.), 856; Roselle v. Buchanan, 16 Q. B. D., 656, 55 L. J. Q. B., 376, 34 Wkly. Rep., 488; Bradbury v. Cooper, 12 Q. B. D., 94, 48 J. P., 198, 53 L. J. Q. B., 558, 32 Wkly. Rep., 32; Stiebeling v. Lockhaus, 21 Hun. (N. Y.), 457; Mason v. Clark, 75 N. Y. App. Div., 460, 78 N. Y. Supp., 327. However, a bill of particulars is sufficient which names one person in whose presence the words are spoken and published. Dempewolf, v. Hills, 53 N. Y. Super. Ct., 105, 11 N. Y. Civ. Proc., 14. In view of the number of publications relied on, we are not disposed to hold that the trial court abused a sound discretion in requiring plaintiff to specify the name of some person in whose presence the publications were made, in those instances where the name of no person was mentioned in the petition. However, in the case of those publications alleged to have been made in the hearing and presence of Doctor Cook, the petition itself was sufficiently definite and it was error to require a bill of particulars specifying the names of other persons in whose presence the .same publications were made. Instead, therefore, of dismissing the entire petition on plaintiff’s failure to comply with the order of the court, the court should have dismissed only that part of the petition which failed to specify the name of any person in whose presence the alleged slanderous words were spoken and published. • Judgment reversed and cause remanded for proceedings consistent with this opinion. .....