Amos v. Stockert

Citation34 S.E. 821,47 W.Va. 109
PartiesAMOS v. STOCKERT.
Decision Date28 November 1899
CourtSupreme Court of West Virginia

Submitted Jan. 14, 1899

Syllabus by the Court.

1. If a court make an order rejecting a plea, it may, in its discretion, at a subsequent term allow the same plea filed when it appears that it had been improperly rejected imposing such conditions upon the moving party as to costs or continuance of the case as may seem just.

2. In an action for defamation, if the defendant would rely on the truth of the matter declared on, he must plead it specially or he cannot give it in evidence at the trial, even in mitigation of damages.

3. When a defamatory charge is made in general terms, it can only be justified by specification of the facts which are relied on to establish its truth.

4. In an action for defamation, where a special plea of justification is permitted to be filed, which undertakes to justify all the charges in the declaration, but is insufficient in its specifications as to any of them, and other special pleas are filed, justifying, by proper specifications, certain of the charges, and on the trial it appeared that the defendant offered no evidence to the jury to prove the truth of any of the charges not specifically justified in such other pleas, the appellate court will regard the filing of said insufficient plea as harmless error.

5. The question of continuance is one addressed to the sound discretion of the court, and, unless it is plainly apparent that such discretion has been abused, this court will not interfere therewith.

Error to circuit court, Upshur county; C. C. Higginbotham, Special Judge.

Action by H. B. B. Amos against G. F. Stockert. Judgment for defendant, and plaintiff brings error. Affirmed.

W. W Brannon and J. C. McWhorter, for plaintiff in error.

A. M. Poundstone, W. B. McGary, and U. G. Young, for defendant in error.

McWHORTER J.

H. B. B. Amos brought his action of trespass on the case in the circuit court of Upshur county against G. F. Stockert, and filed his declaration, as follows: "H. B. B. Amos complains of G. F. Stockert of a plea of trespass on the case for this, to wit: That whereas, the plaintiff is now, and has been continually for a great number of years, a minister of the gospel, depending wholly upon his work as such minister for the support of himself and his family, is a good, true, just, and honest citizen of this state, and as such hath always behaved and demeaned himself, and until the committing of the grievances by said defendant, as hereinafter mentioned, was always reputed, esteemed, and accepted by and amongst all of his neighbors, and other good and worthy citizens of this state to whom he was known, to be a person of good name, fame, and credit, whereby the plaintiff, before the committing of the several grievances by the said defendant, as hereinafter mentioned, was recognized and esteemed as being a minister of good moral character, as a person who was virtuous, upright, honest, and faithful in the discharge of his duties as a citizen and as a minister of the gospel as aforesaid, and has deservedly obtained the confidence and good opinion of all his neighbors; and of other good and worthy citizens of this state to whom he was known, both as a minister of the gospel, as aforesaid, and as a citizen of this state. And the plaintiff says that the said defendant, well knowing the premises, but contriving and wickedly and maliciously intending to insult the plaintiff, did, on the ___ day of ___, 1895, in the presence of L. A. Simons and other good and worthy citizens of this state, then and there, in the presence and hearing of the said last-mentioned citizens, falsely and maliciously, and with intention to insult the plaintiff, speak and publish of and concerning the plaintiff the false, scandalous, malicious, defamatory, and insulting words following, which the plaintiff avers to be, from their usual construction and common acceptation, construed as insults, and tend to violence and breach of the peace; that is to say: 'The Reverend Amos (meaning the plaintiff) has been twice egged out of his own county. I know this is a fact, and can prove it.' 'He (meaning the plaintiff) parted a man and his wife, and ran off with the man's wife, leaving his own wife and children.' 'Parties (naming them) told me that he (meaning the plaintiff) would have better clothes, and would appear more decent, if he (meaning the plaintiff) would not spend his time running after so many dirty bitches, and spend his money riding on the train with them.' Also, on the ___ day of ___, 1895, in the presence of Frederick Cutright and other good and worthy citizens of this state, the said defendant, with a like intent upon his part, uttered and published the following false statements of and concerning the plaintiff; that is to say: 'I have been in Lewis county, near the work of Reverend H. B. B. Amos (meaning the plaintiff), and people told me there that he was a man of very bad character; that he spent his money running after women of bad character, and paying their fare on the train.' 'Amos (meaning the plaintiff) can stand in the pulpit and preach a lie with more grace than any man I ever heard preach.' Also, on the ___ day of ___, 1895, in the presence of J. W. Simons and other good and worthy citizens of this state, the said defendant, with like malicious intent upon his part to slander and injure the plaintiff, did utter and publish the following false and scandalous, malicious, defamatory, and insulting words of and concerning the plaintiff, that is to say: 'If the Camp boys catch H. B. B. Amos (meaning the plaintiff) out, it will be worse for him than the egging he got in Braxton county.' 'He (meaning the plaintiff) has been running over his circuit with other women, spending his money, leaving his family to make their living for themselves.' 'He (meaning the plaintiff) treats his family worse than a dog when he is at home.' The plaintiff avers that all the foregoing words, statements, and utterances made and published by the defendant of and concerning the plaintiff in the presence and hearing of the various parties herein mentioned, together with many other words, statements, and utterances of like meaning, character, and import, uttered and published of and concerning the plaintiff in the presence and hearing of many other good and worthy citizens of this state, were so uttered and published by the defendant falsely and maliciously, and with intent to insult the plaintiff; which said words, statements, and utterances the plaintiff avers are false, scandalous, malicious, defamatory, and insulting, and, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace. By means of which said premises the plaintiff has been greatly injured in his good name, fame, and credit, and has been especially injured in his profession as a minister of the gospel, as aforesaid, and otherwise greatly injured and damnified, to the damage of the plaintiff five thousand dollars ($5,000). And therefore he sues."

On the 8th day of October, 1895, the judge of the court being so situated as to the case that he could not properly try it, Hon. John Brannon was duly elected to hear and determine it, and took the oath prescribed by law for such special judge. On the 9th of October the defendant pleaded not guilty, and issue was joined thereon, and defendant tendered three special pleas in writing, numbered 1, 2, and 3, respectively, and asked leave to file the same, to which filing the plaintiff objected, which objection was sustained by the court, and the pleas rejected, to which ruling the defendant excepted, and the cause was continued on motion of the plaintiff. On the 10th of February, 1896, Special Judge Brannon tendered his oral resignation as such, which was accepted by the court, and on the 11th of February, 1896, Hon. C. C. Higginbotham was elected and qualified as such special judge to try the case, and the defendant, by leave of the court, filed his plea No. 4, of the statute of limitations, to which the plaintiff replied generally, and issue was thereon joined. A jury was then duly impaneled and sworn to try the issues joined, and a true verdict give according to the evidence, and the jury were adjourned and the trial continued until next morning. The defendant tendered his three special pleas numbered 1, 2, and 3, and asked leave to file the same, and the plaintiff objected to such filing, but the court overruled the objection, and allowed them to be filed, and plaintiff to each of said pleas replied generally, and issue was thereon joined, and the evidence was partly taken, and the jury adjourned until next morning. On the 13th day of February the jury and the parties again appeared, and "the defendant moved the court to set aside the order entered herein on the 11th day of February, 1896, commencing on page 357, commencing in the words following: 'This day came the parties by their attorneys,' and ending with these words, 'Continued until tomorrow morning at 8 o'clock.' It was ordered that same be, and the same is hereby, set aside, and the trial was again proceeded with," etc. The trial continued from day to day until the 19th of February, when the jury returned a verdict for the defendant.

On the 21st of February "the plaintiff moved the court to set aside the verdict of the jury and grant him a new trial on the following grounds: First, because the court erred in allowing the defendant to file his three pleas Nos. 1, 2, and 3, they having been once tendered, and rejected by the court second, because the court erred in overruling the motion of the plaintiff for a continuance of this cause at the costs of the...

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