Smalley v. Anderson
| Decision Date | 12 April 1827 |
| Parties | Smalley v. Anderson and Wife. |
| Court | Kentucky Court of Appeals |
Slander. Pleading. Evidence. Affidavit for Continuance not Amendable.
ERROR TO THE BRACKEN CIRCUIT; ADAM BEATTY, JUDGE.
C. S Bibb, for plaintiff.
Marshall for defendants.
[Absent Chief Justice Bibb.]
Statement.
This is an action of slander, and a verdict and judgment for the plaintiff below, which the defendant seeks to reverse by writ of error.
Declaration.
We pass over the exceptions to the declaration, because we perceive no defect therein; but must notice a plea of justification which on demurrer, was overruled by the court beow.
The declaration contains three counts, in each of which the defendant is charged with making direct charges of lewdness against the female plaintiff:--not stating that he detailed the statements of others.
To all these the defendants pleaded, that " it was generally reported, and therefore he had said it was generally reported," that she was guilty of the charges of adultery stated in the declaration. The idea that an individual may assert that another is guilty of the foulest crimes, and then either justify or excuse himself by averring and proving that the same facts were generally reported as true, is too absurd to need refutation. It would exclude every person against whom rumor of guilt generally prevailed, from redress in a court of justice; and if the defendant could first succeed by industrious circulation, in making such reports general, he would excuse himself from all liability, even if they were false and slanderous.
Plea, in slander, for words importing a direct charge of an offence, that " it was generally reported, & c., and therefore, defendant had said it was generally reported," is not sufficient.
The rest of the defendant's plea is, to a part of the declaration, which would not support an action, The plaintiff, in one of the counts, in reciting the words alleged to be spoken by the defendants, couples with the main charge of lewdness, other expressions used by the defendant at the same time, charging the female plaintiff with being a liar, and that he could prove it. This is seized upon by the defendant in his plea, and he gives a long detail of falsehoods, which he alleges were told by the female plaintiff, and which he offers to prove false, while he has given the lame answer already noticed to the main question.
That defendant charged plaintiff with being a liar, is not actionable____But in a suit for actionable words, such words may be proved under the general issue whether contained in the count or not____And defendant might prove they were true without special plea.
Now it is clear, that these words which the defendant seems anxious to justify, are not, in themselves actionable. They need not have been noticed in the declaration; and if not noticed might still have been proved upon the trial, under...
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