Schuler v. Fisher

ANDERSON, J. While section 3746 of the Code of 1907 authorizes the defendant, in actions of slander and libel, to give in evidence, in mitigation of damages, the truth of the words spoken or written, or the circumstances under which they were written or spoken, the defendant is not thereby precluded from setting up as a special defense, in a civil action for slander and libel, the truth of the matter constituting the slander or libel as a bar to the action. — Ferdon v. Dickens, 161 Ala. 181. 49 South. 888, wherein the case of Hereford v. Combs, 126 Ala. 369, 28 South. 582, is explained. The slanderous words charged in the complaint are that the plaintiff was a thief, and the special pleas did not put in issue the truth of this charge, or set up facts going to show that he was a thief. The plaintiff may have been guilty of the things charged in the special pleas, and yet he would not he a thief in law or in common parlance, and the pleas were bad as a bar to the plaintiff’s right of action. On the other hand, if they attempted to detail the circumstances under which the slanderous words were utttered, and which fell short of [188] a bar to the action, and which we hold they did, they were, at most, to be considered in mitigation of the damages, and could have been proven under pleas 1 and 2, to which no demurrer was interposed. It is insisted by the appellant’s counsel that, whether the pleas were defective or not, the defects were not properly pointed out by the demurrer, as- required by section 5340 of the Code of 1907. The first ground of demurrer points out the defect; but, if it is not sufficiently specific as to comply with the statute, .the action of the trial court in sustaining same was error without injury, as the pleas could not have been amended so as to charge that the plaintiff was a thief without a radical departure from the facts there set up. — Sunflower Co. v. Turner Co., 158 Ala. 191, 48 South. 510; Ryall v. Allen, 153 Ala. 222, 38 South. 851. The judgment of the city court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and Sayre, JJ., concur in the conclusion, and think that the demurrers were sufficient and were properly sustained to the special pleas.