Cole v. Woodson

The opinion of the court was delivered by Valentine, J.: This was an action for slander, brought by W. D. Woodson against I). J. Cole. The petition contained two counts. The defendant answered, setting up three several defenses: First, A general denial; second, a denial that he used the words charged in the petition, but alleging that if he did use the same, “he was justified in so doing, for the reason that the said words were true in substance and ip fact,” and that the plaintiff was guilty of the matters and things which such words imputed to him; third, a denial that he used the language charged against him in the petition, but alleging that if he did use the same, he was induced and provoked to do so by the wrongful and malicious acts and conduct of the plaintiff. The plaintiff demurred to the second and third defenses of th ' answer, which demurrer was overruled by the court, and the plaintiff then -replied to such [275] defenses by filing a general denial. A trial was then.had upon these pleadings, before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff and against the defendant for $1 and costs of suit. To reverse this judgment, the defendant, as plaintiff in error, now brings the case to this court. On the trial in the court below, the defendant offered to introduce in evidence testimony to prove the allegations of his second and third defenses, and to show that the supposed slanderous language alleged to have been used by him was in fact true; whereupon the plaintiff objected to the introduction of any such evidence, or of any evidence in justification of the alleged defamatory language, for the reason that neither of such defenses, nor any defense, admitted the speaking of the alleged slanderous language. The court below sustained the objection, and the defendant duly excepted. This is the first ruling of the court below assigned for error, and it presents the principal question involved in the case; and with our view of the case, the decision of this question will render it unnecessary to consider any of the other questions presented by counsel, or involved in the case. We think the court below erred. Sections 125 and 126 of the civil code read as follows: “Sec. 125. 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. “Sec. 126. In the actions 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.” Section 94 of the civil code provides, among other things, as follows: “ The defendant may set forth in his answer as many grounds of defense, counter-claim, set-off and for relief as he may have, [276] whether they be such as have been heretofore denominated legal,, or equitable, or both.” It is understood that the decision of the court below was based entirely upon the theory that in actions for slander the defendant cannot set forth in his answer both a denial that he used the language charged against him, and also, in justification, that such language is true. Now we think that this theory is erroneous. The two defenses are not inconsistent. It may certainly be true that the defendant never used the language charged against him, and it may also be true that the language itself with all that it implies is true. One of such defenses does not in the least contradict the other. Both are defenses under the statutes; and thereunder the defendant may set forth in his answer as many defenses as he may have. And why should he not be entitled to do so? It would certainly be a great hardship to a defendant who has been sued for slander to be required to admit that he had used the alleged slanderous words, when in fact he may never have used them, in order that he may be allowed to show that such words are in fact true. • And it would equally be a great hardship to him to be required in effect to admit that the words are false and slanderous, when in fact they may be true, in order to be allowed to make the defense that he never used such words. Our statutes do not tolerate any such unjust rules, but allow a defendant to set forth as many defenses as he may have, which in slander cases may be that he did not use the' words charged, and also that the words- are true. And it makes no difference what the common law may have been, or what may have been decided by courts in other states, where their statutes are different from the statutes of Kansas. The statutes of Kansas must govern in actions originating and instituted within the borders of Kansas. And where they are clear and explicit, we nfeed not look any further. Counsel for both parties have cited the cases of Wiley v. Keokuk, 6 Kas. 94; Butler v. Kaulback, 8 id. 668, and Wright v. Bacheller, 16 id. 259. Now the principles running through these cases to which [277] we suppose counsel wish to call our attention, are, that a defendant cannot set up in his answer inconsistent defenses, and that whatever he may set up, allege or .admit in any one portion of his answer which is unfavorable to him, will limit, modify or overturn anything inconsistent therewith and favorable to the defendant and set forth in some other portion of his answer. Ve still adhere to these principles; but they have but little application to this case. We would cite Townshend on Slander and Libel, §§353, 361, as having some application to this case. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.