Dever v. Clark , 44 Kan. 745 ( 1890 )

The opinion of the court was delivered by

Horton, C. J.:

The principal contention in this case is that the defendant’s answer was insufficient as a plea of justification; therefore, that the trial court committed error in permitting the defendant to offer any testimony in the case under his answer or amended answer. Section 125 of the civil code reads:

“In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the facts, showing that the defamatory matter was published or spoken of him.”

Section 126 of the civil code provides:

“In the action mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory, and may prove the same and any mitigating circumstances, to reduce the amount of damages, or he may prove either.”

The requisites of an answer in an action for libel for justification depend upon whether the charge is general or specific. Where the charge is specific, it is sufficient to state that the supposed defamatory words or libelous publication set forth in the petition are true. Where the charge is in general terms, the answer must state the facts which show the defamatory words or libelous publication to be true; it is not sufficient merely to allege that the charge is true. Bliss states the rule as follows:

“When the defamatory words, as set out, are sufficient of themselves to describe the offense, then a general affirmation of their truth has been held to be sufficient; but, otherwise, the plea or answer of justification must show the facts that constitute the offense with the same particularity as an indictment for the same offense. The plaintiff is, in fact, put on trial, and the defendant can only sustain himself by stating and proving the commission of a specific offense which would warrant the charge; and if there is a variance, or if the quasi-indictment is less broad than the charge, or if it- omits an element necessary to constitute the offense charged, it is no justification. In regard to justification by showing that the publication was privileged, the code has made no change. The facts that will thus shield the defendant are, as they always were, new matter to be pleaded.” (Sec. 361, Code Pleading.)

See also Stith v. Fullinwider, 40 Kas. 73; Townshend, Sl. & Lib., §§ 212, 355, 382; Van Derveer v. Sutphin, 5 Ohio St. 293; Castle v. Houston, 19 Kas. 426; Thompson v. Press Co., 33 N. W. Rep. 856; Sunman v. Brewin, 52 Ind. 140.

If the charge be that the plaintiff is a swindler, or a thief, or a perjurer, or a murderer, or that he stole a watch, or certified a lie, or was of intemperate habits, or received a bribe, or perverted the law, it is not sufficient merely to allege that the charge is true. The plea of justification must set up the facts upon which the defendant relies to make out a charge. (Townshend, Slander & Libel, §355; Newell on Slander & Libel, §§ 68-84.) In this case, considering the allegations of the petition and the answer as amended, we think the alleged libelous charges were so specific as to permit the defendant to offer proof in justification. These charges are fully set forth in the statement of the case, and need not be repeated here.

From the petition and answer, the court was clearly able to determine that the alleged charges were libelous, and we think the plaintiff must have been fully prepared, from the allegations of the petition and answer, to meet the proof of the defendant.

Complaint is also made that the defendant was permitted, without a sufficient plea therefor, to prove mitigating circumstances. The record recites “that the defendant, to maintain the issues upon his part, offered his proof, and the plaintiff thereupon objected to the introduction of any testimony in justification or mitigation under the defendant’s answer j and the court overruled the objection and permitted the introduction of such testimony, to which ruling and the introduction of such testimony the plaintiff at the time excepted.”

There is no testimony contained in the record, and as the jury found in favor of the defendant and against the plaintiff, it is apparent that this verdict was rendered upon the plea of justification, and not on account of any mitigating circumstances; therefore we cannot say, from the record, that auy material error was committed in the ruling of the trial court. The same may also be said of the instructions given and refused,- as none of the testimony is preserved.

Plaintiff insists that the instructions could not be applicable to the case under any state of facts, and especially criticised one of the instructions that the jury might consider in assessing the amount of damages, whether or no the alleged libelous charges were maliciously made. This instruction should be construed with the others given to the jury. In this light the instructions might all have been applicable. Among other things, the court instructed the jury as follows:

“1. Libel is defined by our statute, so far as applicable to this ease, as the malicious defamation of a person, made public by any printing or writing tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.

“2. Both of the articles complained of by the plaintiff in his petition, copies of which articles are attached to said petition, are libelous in themselves, and unless the defendant proves them to be true, by a preponderance of the evidence, then the plaintiff would be entitled to recover such damages as he has sustained by the publication of said articles.

“3. The defendant, as already stated, pleads as a defense, that the matters published by him and complained of by the plaintiff are true, aud it devolves upon him to prove, by a preponderance of the evidence, the truth of said matter; and if he has succeeded in establishing the truth of the matter charged as defamatory in the plaintiff’s petition, by a preponderance of the testimony, then your verdict must be for the defendant.

l£4. And this is true, no matter what the motives of the •defendant may have been in the publication thereof. It is no concern of yours. It is no concern of the plaintiff, or of anybody else, what the defendant’s motives in such publication may have been. It is a complete defense to this action, if he has succeeded in establishing the truth of the matters published by him concerning the plaintiff.

“5. Although the plaintiff alleges in his petition that he has, on account of the publications complained of, sustained a damage of one thousand dollars on account of each of said publications, it is not necessary for him to prove any specific damage; for the law presumes the reputation of the plaintiff to be good, as also it presumes that his official duties as a public officer were honestly performed, and his professional obligations properly discharged; and an article which tends to hold him up to the public view as an unskilled lawyer and an incompetent officer, is libelous per se, (per se meaning, of itself,) and entitles the plaintiff to damages, unless the defendant establishes the truth of said publication by a preponderance of the evidence.”

These instructions were clearly applicable under the statement made by the plaintiff in his brief, and intelligently presented the issues to the jury under the plea of justification.

The judgment of the district court will be affirmed.

All the Justices concurring.