
    No. 32,716
    Henry L. Doherty, Appellant and Appellee, v. The Kansas City Star Company and Roy A. Roberts, Appellees and Appellants.
    
    (59 P. 2d 30)
    Opinion denying a rehearing filed July 3, 1936.
    (For original opinion see 143 Kan. 802, 57 P. 2d 43.)
    
      Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson, Ralph W. Oman, all of Topeka, Fred Robertson, E. M. Boddington and J. 0. Emerson, all of Kansas City, for the appellant.
    
      T. M. Dillard, of Topeka, W. F. Dilleston, of Wichita, I. N. Watson, Henry Ess and Paul Barnett, all of Kansas City, Mo., for the appellees.
   The opinion of the court was delivered by

Burch, C. J.:

A petition for rehearing has been filed, which makes it necessary for the court to change the wording of the opinion. The court used some colloquial language instead of the strictly accurate phraseology which should have been employed.

The Star company printed a cartoon exhibiting Doherty in a certain attitude and containing some legends giving the picture punch. Doherty sued the Star company and Roberts for damages for libel. The third count of the petition, relating to the cartoon, was in appropriate form. A general demurrer was filed. In disposing of the demurrer the court said the cartoon was clearly libelous. What should have been said was that, to the mind of the court, the cartoon was clearly capable of a defamatory meaning, warranting general damages.

The court desires that its decision respecting count 4 be considered in the light of what has just been said.

Pursuant to the demurrer, the court was pressed to say that on the face of the petition the publications were privileged, or were fair comment on something. The court was not authorized to make such a declaration as a matter of law, under the law of this state, which remains just as it was before the original opinion was filed.

The petition for rehearing is denied.  