Johnson v. Bradstreet Co.

Blandford, Justice. Johnson recovered damages against the Bradstreet Company, on account of a libel which he alleged had been written and published concerning him. The Bradstreet Company moved for a new trial on several grounds, but mainly upon the ground that the court erred in refusing to allow them to open and conclude the case to the jury. They contended that inasmuch as they had pleaded justification, they were entitled to the opening and conclusion. The court granted a new trial, and granted it, we presume, mainly upon this ground; because the other grounds of the motion appear to have nothing in them. The plaintiff excepted to the grant of a new trial, and brought the case to this court for review. He contends that the defendant having pleaded the general issue, and having kept that plea in this case, as well as the plea of justification, he (plaintiff) was therefore entitled to open and conclude to the [428] jury. We do not agree with the plaintiff in this. It is true that under the Statute of Anne, which allowed contradictory pleas to be pleaded, the courts of England have held, and it has also been held in this country, that where both the general issue and justification are pleaded, the plea of justification does not amount to an admission; and hence the plaintiff does not lose his right to open and conclude. But under our code the law has been changed. It says (code, §3051,) that where justification is pleaded, the defendant “ shall be entitled to all the privileges of one holding the affirmative of the issue.” And it seems from some of the decisions of this court, notably that in the case of Ransone vs. Christian, 49 Ga. 491, that it does not make any difference at what stage the plea of justification comes in; the defendant assumes the burden of proving his plea, and if he fails to prove it certain consequences attach to it, and therefore he is entitled'to open and conclude the ease to the jury. It may appear illogical — it does to mymind —to allow a party to open and conclude to the jury who denies the plaintiff's right of action; but the plea of justification is an admission on the part of defendants that they wrote and published the words as alleged in the declaration. Damages followed from this act. It is true the declaration alleged certain special damages, but that would not make any difference as to the right of the defendant to open and conclude. In the present case, I would remark, the special damages alleged do not appear to us to be recoverable. So while this case has been tried twice, we are reluctantly compelled to affirm the judgment of the court below granting a new trial. Judgment affirmed.