George v. Lemon

• Decision Date: 01 January 1857
• Citation: 19 Tex. 150
• Parties: E. B. GEORGE v. J. E. LEMON.
• Court: Texas Supreme Court

19 Tex. 150

E. B. GEORGE

v.J. E. LEMON.

Supreme Court of Texas.

1857.

Where a plea of justification in an action of slander, for charging the plaintiff with stealing corn, alleged the dates and values in blank, the court said that if exception to the plea had been taken specially on that ground, the court should have sustained the exception; but it was held a general exception was properly overruled.

Where the actionable words are that the plaintiff stole corn, the failure of a plea of justification to state the value of the corn which it is alleged the plaintiff stole, is not a defect in matter of substance, which is reached by a general exception to the plea.

Appeal from Wood. Tried below before the Hon. William W. Morris.

The facts are stated in the opinion.

C. C. Galloway, for appellant.

Turner & Banks, for appellee.

ROBERTS, J.

This is an action of slander, brought by appellant against appellee, in which defendant Lemon obtained a verdict on his plea of justification.

The errors complained of are,

1st. That the plea is insufficient; and

2d. That the evidence does not support it.

The slanderous words charged in the petition are, “You stole corn, and I can prove it by George W. Haines and old man Hobbs.”

The plea states that “the said plaintiff, before the speaking and publishing of the said several words of and concerning said plaintiff, as in said petition mentioned, to wit: on the _______ day of _______, at, to wit, in the county of Wood, did feloniously steal, take and carry away certain goods and chattels, to wit, corn, the property of Patton, of great value, to wit, of the value of _______ dollars; and corn, the property of Nathan Jones, of great value, to wit, of the value of _______ dollars; and fodder, the property of Ambrose Fitzgerald, of great value, to wit, of the value of _______ dollars; therefore he, the said defendant, afterwards, at the time and place in said petition mentioned, did speak and publish the said words of and concerning the said plaintiff as in the said petition mentioned,” etc.

The plaintiff filed a general exception, and a special exception as to the allegation about “fodder,” which was sustained so far as the plea charges the stealing of fodder, and overruled as to the balance. Had the defendant pointed out specially the want of dates and values in the plea, the court should have required an amendment or ruled the whole plea to be bad. This not being done, it was not error to overrule the exception so far as it was overruled. Warner v. Bailey, 7 Tex. 517. The plea alleges the stealing of corn as charged before the speaking of the words; and the particular time of the stealing is not a matter of substance, but upon special exception should be required to be stated, so as to enable the defendant to know what particular transaction he had to meet. The want of an averment as to the value of the corn might, at first view, seem to be more material. It must be considered...